Civil Rights and Discrimination Commons^™

Erie Step Zero, Alexander A. Reinert

Articles

Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong.

To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy concerns: concerns …

Potential Life In The Doctrine, Leah Litman

Articles

In their article, Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin seek to shore up the doctrinal basis for a woman’s constitutional right to end her pregnancy. While Chemerinsky and Goodwin are partly concerned about the status of abortion rights in the United States because of President Donald Trump’s promise prior to taking office to appoint Justices to the Supreme Court who will overturn Roe v. Wade, they also maintain that some of the threat to abortion rights arises from an uncomfortable tension in the doctrine that recognizes states’ interest in potential life. I agree with Chemerinsky and …

Against Gay Potemkin Villages: Title Vii And Sexual Orientation Discrimination, Anthony Michael Kreis

All Faculty Scholarship

Should Title VII allow employers to invoke a “love the sin, hate the sinner” defense to escape liability for firing lesbians, gays, and bisexuals? According to one prominent federal judge, the answer is “yes.”This Essay examines federal judges’ evolving and correct recognition that sexual orientation discrimination claims are colorable under Title VII’s existing framework. The Essay compares the arguments concerning the actionability of sexual orientation claims laid forth in the Second Circuit (Christiansen v. Omnicom), the 7th Circuit (Hively v. Ivy Tech), and the Eleventh Circuit (Evans v. Georgia Regional Hospital).The Essay argues against the position taken by one member …

Racial Classifications In Law School Admissions, Donald J. Rosenberg

The Catholic Lawyer

No abstract provided.

The Negative Ramifications Of Hate Crime Legislation: It’S Time To Reevaluate Whether Hate Crime Laws Are Beneficial To Society, Briana Alongi

Pace Law Review

Supporters of hate crime legislation suggest that the primary reason for the codification of hate crime laws is “to send a strong message of tolerance and equality, signaling to all members of society that hatred and prejudice on the basis of identity will be punished with extra severity.” However, hate crime laws may actually be accomplishing the opposite effect of tolerance and equality because they encourage U.S. citizens to view themselves, not as members of our society, but as members of a protected group. The enactment of hate crime legislation at the federal and state levels has led to unintended …

Toward The Elimination Of De Facto Segregation In Public Schools, Glenn Backer

The Catholic Lawyer

No abstract provided.

Obergefell’S Impact On Functional Families, Raymond C. O'Brien

Catholic University Law Review

More than forty percent of children born in America are born to unmarried parents and only half of all cohabitating adults in America are currently married. While many children are born to single parents, others are part of the two-person unmarried cohabiting functional family paradigm. What is the status of these children?

This article examines the changing paradigm of parental status, specifically vis-à-vis homosexual couples with children, and the rights of the non-biological parent after separation. This article examines the changes in law in regards to unmarried parents leading up to the Uniform Parentage Act. It describes the equitable remedies …

A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany

International Law Studies

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the …

Justice For Noncitizens: A Case For Reforming The Immigration Legal System, Anna Paden Carson

VA Engage Journal

The immigration legal system exists as a function of the executive branch rather than the judicial branch, and many of the constitutional rights guaranteed in a judicial court do not continue into the immigration legal sphere. Noncitizen defendants in the immigration court system are not guaranteed the same due process rights or right to appointed counsel as United States citizens, which severely limits their chance of a successful outcome. Moreover, while many noncitizens await their trials in these courts, they are often placed in one of the 234 immigration detention facilities across the nation, which further exacerbates the direness of …

Integrated, James W. Miller

Civil Rights

In Integrated: The Lincoln Institute, Basketball, and a Vanished Tradition, James W. Miller explores an often ignored aspect of America's struggle for racial equality. He relates the story of the Lincoln Institute—an all-black high school in Shelby County, Kentucky, where students prospered both in the classroom and on the court. In 1960, the Lincoln Tigers men's basketball team defeated three all-white schools to win the regional tournament and advance to one of Kentucky's most popular events, the state high school basketball tournament. This proud tradition of African American schools—a celebration of their athletic achievements—was ironically destroyed by integration.

This …

Websites As Facilities Under Ada Title Iii, Ryan C. Brunner

Duke Law & Technology Review

Title III of the Americans with Disabilities Act requires public accommodations—private entities that offer goods or services to the public—to be accessible to individuals with disabilities. There is an ongoing debate about whether Title III applies to websites that offer services to the public, but this debate may be resolved in the coming years by litigation or Department of Justice regulations. Assuming for the sake of argument that Title III will eventually be applied to websites, the next inquiry is what that application should look like. The regulatory definition of “facilities” should be amended to include nonphysical places of public …

Some Thoughts On The Relevance Of Customer Behavior To Discrimination Law: Who Counts As A ‘Customer’?, Patrick S. Shin

Suffolk University Law School Faculty Works

In their article, “Discrimination by Customers,” 102 Iowa L. Rev 223 (2016), Katharine Bartlett and Mitu Gulati challenge the law’s asymmetric treatment of “firms” and “customers.” In this brief response, I argue that the asymmetry makes sense if (1) discrimination law is primarily about distributive justice; and (2) customers are marketplace actors who lack institutional power to distribute jobs, incomes, or essential goods and services. While Bartlett and Gulati largely ignore the first assumption, they provide persuasive reasons for rejecting the second.

Disability Rights In The Age Of Uber: Applying The Americans With Disabilities Act Of 1990 To Transportation Network Companies, Rachel Reed

Georgia State University Law Review

Within the past year, individual plaintiffs and disability rights organizations have initiated a number of lawsuits against Uber, and similar companies like Lyft, alleging violations of Title III of the Americans with Disabilities Act of 1990 (Title III). In each of these cases, the plaintiffs’ success turns on affirmatively answering one significant threshold question: Whether Uber, or a similar entity, falls within the scope of Title III. Traditional taxi companies fall squarely within the Americans with Disabilities Act of 1990’s (ADA) coverage under 42 U.S.C. § 12184 (§ 12184), which governs private companies that provide transportation services. Given the similarities …

Civil Liberty Or National Security: The Battle Over Iphone Encryption, Karen Lowell

Georgia State University Law Review

On June 5, 2013, Edward Snowden released what would be the first of many documents exposing the vast breadth of electronic surveillance the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) had been conducting on millions of United States citizens. Although the federal agencies had legal authority under the Foreign Intelligence Surveillance Act (FISA) to collect metadata from companies such as Verizon, many Americans considered this data collection to be a massive invasion of privacy.

Equipped with the knowledge of sweeping domestic surveillance programs, citizens and technology firms fighting for strong privacy and security protection, have started …

Brief Of Amici Curiae Labor Economists And Social Scientists In Support Of The Petition For Writ Of Certiorari, Fred T. Korematsu Center For Law And Equality, Charlotte Garden

Fred T. Korematsu Center for Law and Equality

Richard M. Villarreal v. R.J. Reynolds Tobacco Co., et al.

Memorandum Of Korematsu Center In Support Of Review, Fred T. Korematsu Center For Law And Equality

Fred T. Korematsu Center for Law and Equality

State of Washington v. Scott

Gloucester County School Board V. G. G.: Brief For Professors Samuel Bagenstos, Michael C. Dorf, Martin S. Lederman And Leah M. Litman As Amici Curiae In Support Of Respondent, Samuel Bagenstos, Leah Litman

Appellate Briefs

Amici are legal scholars who teach and write on constitutional law and civil rights law. They submit this brief to call attention to a means of resolving this case not presented by the parties or other amici.

Title IX of the Education Amendments of 1972 provides that in a school district receiving federal financial assistance, "[n]o person in the United States shall, on the basis of sex, . . . be subjected to discrimination." 20 U.S.C. § 1681(a).

As applied to transgender students, however, such segregation on the basis of sex-on the basis of anatomical differences in external reproductive organs-does …

Reconstructing Local Government, Daniel Farbman

Vanderbilt Law Review

After the Civil War, the South faced a problem that was almost entirely new in the United States: a racially diverse and geographically integrated citizenry. In one fell swoop with emancipation, millions of former slaves were now citizens. The old system of plantation localism, built largely on the feudal control of the black population by wealthy white planters, was no longer viable. The urgent question facing both those who sought to reform and those who sought to preserve the "Old South" was: What should local government look like after emancipation? This Article tells the story of the struggle over the …

The Case For State Attorney General Enforcement Of The Voting Rights Act Against Local Governments, Perry Grossman

University of Michigan Journal of Law Reform

The summer of 2016 showed that racial discrimination in voting is alive and well, as federal courts across the country struck down state statutes that disproportionately disenfranchise minority voters, including voter ID laws, restrictions on early voting, and racially gerrymandered legislative districts. However, at the local level, discriminatory practices in the nation’s approximately 89,000 political subdivisions have gone largely uninvestigated and challenged. Recent conflicts between communities of color and law enforcement have highlighted the failure of local governments in places like Ferguson, Missouri to adequately represent the interests of minority voters. These failures of representation, which occur in progressive states …

Executive Disorder: The Muslim Ban, Emergency Advocacy, And The Fires Next Time, Abed Ayoub, Khaled Beydoun

Michigan Journal of Race and Law

On January 27, 2017, one week into his presidency, Donald Trump enacted Executive Order No. 13769, popularly known as the “Muslim Ban.” The Order named seven Muslim-majority nations and restricted, effective immediately, the reentry into the United States of visa and green card holders from these states. With the Muslim Ban, President Trump delivered on a central campaign promise, and as a result, injected Islamophobia into American immigration law and policy.

The Muslim Ban had an immediate impact on tens of thousands of Muslims, directly affecting U.S. visa and green card holders currently outside of the country, while exacerbating fear …

“Why Should I Go Vote Without Understanding What I Am Going To Vote For?” The Impact Of First Generation Voting Barriers On Alaska Natives, James Thomas Tucker, Natalie A. Landreth, Erin Dougherty Lynch

Michigan Journal of Race and Law

This article explores the many forms of discrimination that have persisted in Alaska, the resulting first generation voting barriers faced by Alaska Native voters, and the two contested lawsuits it took to attain a measure of equality for those voters in four regions of Alaska: Nick v. Bethel and Toyukak v. Treadwell. In the end, the court’s decision in Toyukak came down to a comparison of just two pieces of evidence: (1) the Official Election Pamphlet that English-speaking voters received that was often more than 100 pages long; and (2) the single sheet of paper that Alaska Native language …

Concealed Motives: Rethinking Fourteenth Amendment And Voting Rights Challenges To Felon Disenfranchisement, Lauren Latterell Powell

Michigan Journal of Race and Law

Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democracy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike.

In light of those failures, …

Eeoc Proposed Guidance Shows We Can Protect Religious Freedom & Lgbtq Rights, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

While the President and Congress consider acts to expand religious exemptions at the expense of LGBTQ and other rights, a proposed federal regulation demonstrates that we can — and should — protect both religious and LGBTQ communities.

Compliance Requires Inspection: The Failure Of Gender Equal Pay Efforts In The United States, Renalia Dubose

Mercer Law Review

On Friday, January 29, 2016, President Barack Obama expanded a previous executive order by requiring the Department of Labor to collect wage data based on gender, race, and ethnicity from contractors with at least 100 employees doing business with the federal government. That previous executive order was the April 8, 2014 Executive Order 13665 entitled Non-Retaliation for Disclosure of Compensation Information and was designed to amend the September 24, 1965 Executive Order 11246 entitled Equal Employment Opportunity by President Lyndon Johnson. Executive Order 13665 was issued to require transparency concerning compensation among private entities doing business with the federal government …

Tobacco Denormalization, Anti-Healthism, And Health Justice

Marquette Benefits and Social Welfare Law Review

None

The Resilience Of Noxious Doctrine: The 2016 Election, The Marketplace Of Ideas, And The Obstinacy Of Bias, Leonard M. Niehoff, Deeva Shah

Michigan Journal of Race and Law

The Supreme Court has recognized the central role that free expression plays in our democratic enterprise. In his dissenting opinion in United States v. Abrams, Justice Holmes offered a theory of how free expression advances our search for truth and our cultivation of an informed electorate. That model—often called the “marketplace of ideas,” based upon the metaphor used by Holmes—has proven to be one of the most persistent and influential concepts in First Amendment jurisprudence.

The marketplace of ideas model essentially holds that free expression serves our democratic goals by allowing differing proposed truths and versions of the facts …

Was Cleburne An Accident?, William Araiza

Faculty Scholarship

No abstract provided.

Executive Estoppel, Equitable Enforcement, And Exploited Immigrant Workers, Angela D. Morrison

Faculty Scholarship

Unauthorized workers in abusive workplaces have found themselves in a tug-of-war between federal agencies. On one side are federal prosecutors with the Department of Justice or Immigration and Customs Enforcement--who seek to criminally prosecute or deport the workers and treat the workers as defendants. On the other side are agencies like the U.S. Equal Employment Opportunity Commission, the Department of Labor, and U.S. Citizenship and Immigration Services who have determined the workers are victims of workplace exploitation and deserve protection. This mixed message—protection from one federal agency and prosecution by another—is contrary to Congressional intent and undermines the enforcement of …

Detention By Armed Groups Under International Law, Andrew Clapham

International Law Studies

Does international law entitle armed groups to detain people? And what obligations are imposed on such non-state actors when they do detain? This article sets out suggested obligations for armed groups related to the right to challenge the basis for any detention and considers some related issues of fair trial and punishment. The last part of this article briefly considers the legal framework governing state responsibility and individual criminal responsibility for those that assist armed groups that detain people in ways that violate international law.

Newsroom: Ny Times: Refugee, Immigrant, And Citizen 02-27-2017, Alexandra S. Levine, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.