Civil Rights and Discrimination Commons^™

Meeting Across The River: Why Affirmative Action Needs Race And Class Diversity, Deirdre M. Bowen

Faculty Articles

This paper is a response to Richard Sander’s latest work challenging the notion that race based affirmative action is still relevant and demanding that institutions of higher education consider class based affirmative action. To support his thesis, Sander conducts an empirical study on who benefits from affirmative action.

This Article is divided into three sections, each containing a critique of Sander’s arguments and analysis. First, I briefly reframe and reiterate the history of race and ethnicity in affirmative action’s origins to directly confront the assumption that Sander makes about what affirmative action’s original purpose entailed. The goal of Part I …

Rodrigo’S Reconsideration: Intersectionality And The Future Of Critical Race Theory, Richard Delgado

Faculty Articles

The author presents a discussion between him and his friend Rodrigo Crenshaw on intersectionality and the future of critical race theory. They discuss the three core critical-race theory ideas which include narrative jurisprudence, integroup coalitions and intersectionality. The author also explains the concept of classical liberalism.

The Iqbal Effect: The Impact Of New Pleading Standards In Employment And Housing Discrimination Litigation, Raymond H. Brescia

Kentucky Law Journal

No abstract provided.

Maryland Lawyers Who Helped Shape The Constitution: Father Of Freedom - Charles Hamilton Houston, José F. Anderson

All Faculty Scholarship

For most Americans, Charles Hamilton Houston is barely a footnote in history. Born in 1896, this Phi Beta Kappa graduate of Amherst College and Harvard educated African-American lawyer went on to win eight of nine cases in the United States Supreme Court. He designed the legal strategy for the historic Brown v. Board of Education 347 U.S. 483 (1954). He was the first African American to be elected to the Harvard Law Review and the first to earn the degree Doctor of Juridical Science Degree

By 1950 he would be laid to rest, exhausted by his brutal multi-state law reform …

Racial Redistricting In A Post-Racial World, Gilda R. Daniels

All Faculty Scholarship

The 2011 redistricting will provide some interesting challenges for minority voting rights. How can we preserve minority electoral opportunities and gains in the wake of Bartlett v. Strickland and Georgia v. Ashcroft? What is the impact on future voting rights litigation and are coalition district claims viable as an opportunity to continue the electoral gains made since the passage of the Voting Rights Act? Are majority-minority districts safe from legislative backsliding? The Supreme Court's construed admonitions against race-conscious redistricting in recent cases may become cautionary tales. This Article discusses the central role the Voting Rights Act should play in preserving …

Overcoming Under-Compensation And Under-Deterrence In Intentional Tort Cases: Are Statutory Multiple Damages The Best Remedy?, Stephen J. Shapiro

All Faculty Scholarship

This Article advocates that states' statutes make greater and more systematic use of multiple damages by extending them to a much broader range of intentional, wrongful conduct. Part II of this Article will explain why extra-compensatory relief is called for when tortious conduct is intentional or malicious. Part III will compare punitive damages, attorney fees, and treble or other multiple damages as possible sources of additional relief. Part IV will focus on multiple damages. The Article will examine the range of existing state statutes and discuss why and how those statutes might be extended to a broader range of wrongful …

Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward

Journal Articles

This essay explores the proper scope of Congress’s power to enforce the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. It reviews the historical context surrounding the drafting of the Thirteenth Amendment enforcement power, and it points to structural constitutional considerations relevant to the understanding of that power. It concludes by suggesting some related topics that deserve further exploration.

Is Ze An American Or A Foreigner? Male Or Female? Ze's Trapped!, Annette De La Torre

Cardozo Journal of Equal Rights & Social Justice

The note argues that the legal and medical frameworks governing the treatment of transgender and transsexual immigrant detainees in U.S. Immigration and Customs Enforcement (ICE) facilities are inadequate, leading to violations of their Eighth Amendment rights. It contends that the legal system's reliance on narrow medical definitions and outdated gender roles fails to protect these detainees from unsafe and inhumane conditions. The analysis emphasizes the need for comprehensive reforms to address housing, medical care, and staff training to ensure dignity and safety for transgender detainees.

Biological Metaphors For Whiteness: Beyond Merit And Malice, Brant T. Lee

Akron Law Faculty Publications

The problem of persistent racial inequality is grounded in a failure of imagination. The general mainstream conception is that unfair racial inequality occurs only when there is intentional racism. Absent conscious racial malice, no racism is seen to exist. The only generally available alternative explanation for racial inequality is the meritocratic system. Viewing the distribution of resources as a product of a generally fair meritocratic system provides a defense against any charge of racism, and justifies the status quo.

But in economics, business, computer science, and even biology, observers of complexity are coming to understand how dominant systems can prevail …

Introduction To The Symposium: Access To Justice: Mass Incarceration And Masculinity Through A Black Feminist Lens, Adrienne D. Davis, Annette R. Appell

Scholarship@WashULaw

This Introduction to the Symposium, Race to Justice: Mass Incarceration and Masculinity through a Black Feminist Lens, rehearses the animating forces that led to a colloquium and a series of papers that explore the question of mass incarceration and the negative state engagement surrounding it through gendered and feminist lenses. The Introduction explains how an analysis of mass incarceration through the lens of gender complicates what is often conceived as a story about race. Instead mass incarceration can be more deeply understood through its gendered effects on men and the women and children connected to those men. These connections include …

Dignity As A Constitutional Value: A South African Perspective, Arthur Chaskalson

American University International Law Review

No abstract provided.

Understanding Discrimination In A "Post-Racial" World, Michael Selmi

Cardozo Law Review

No abstract provided.

Green Jackets In Men's Sizes Only: Gender Discrimination At Private Country Clubs, Thaddeus M. Lenkiewicz

Vanderbilt Journal of Transnational Law

On November 3, 2009, the Supreme Court of Ireland held that the Portmarnock Golf Club could maintain its rule prohibiting female membership free from the sanctions of Ireland's antidiscrimination laws. Portmarnock is representative of the numerous private golf clubs that continue to promote discrimination against women. Despite significant advances in gender equality, private country clubs in the United States, the United Kingdom, and Ireland remain bastions of codified gender discrimination. Many of the most prominent golf clubs hold firmly to discriminatory policies established generations ago. Opposition to these policies has come in various forms of protest and litigation, with mixed …

Racial Inequities In Mortality And Access To Health Care: The Untold Peril Of Rationing Health Care In The United States, Ruqaiijah A. Yearby

All Faculty Scholarship

On February 25, 2007, a 12-year-old African American boy named Deamonte Driver died of a toothache because he did not receive a routine $80 tooth extraction that may have saved him, which was covered by his insurer: Medicaid. Unable to afford $80 or find a dentist that took Medicaid, Deamonte wound up in the emergency room, underwent two brain surgeries, and was in the hospital for six weeks of treatment, which cost approximately $250,000. In the end, Deamonte still died from a brain infection caused by the spread of the bacteria from the abscess in his mouth.

While Deamonte did …

Discrimination By Comparison, Suzanne B. Goldberg

Faculty Scholarship

Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary's dependence on comparators – those who are like a discrimination claimant but for the protected characteristic – as a favored heuristic for observing discrimination. The profound mismatch of the comparator methodology with current understandings of identity discrimination and the realities of the modern workplace has nearly depleted discrimination jurisprudence and theory. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today's mobile, knowledge-based economy. This difficulty is amplified for complex claims, which rest on thicker understandings of discrimination developed …

Income Tax Discrimination: Still Stuck In The Labyrinth Of Impossibility, Michael J. Graetz, Alvin C. Warren Jr.

Faculty Scholarship

In previous articles, we have argued that the European Court of Justice's reliance on nondiscrimination as the basis for its decisions did not (and could not) satisfy commonly accepted tax policy norms, such as fairness, administrability, economic efficiency, production of desired levels of revenues, avoidance of double taxation, fiscal policy goals, inter-nation equity, and so on. In addition, we argued that the court cannot achieve consistent and coherent results by requiring nondiscrimination in both origin and destination countries for transactions involving the tax systems of more than one member state. We demonstrated that – in the absence of harmonized income …

Equality Dissonance: Jurisprudential Limitations And Legislative Opportunities, Lia Epperson

Scholarly Articles in Law Reviews & Journals

In his pivotal concurrence in Parents Involved in Community Schools v. Seattle School District No. 1 Justice Kennedy articulated two fundamental strains of an equality ideal for addressing systemic racial segregation and inequality in public education: he eloquently underscored the critical importance of racial integration for educational equity, and reiterated the essential role of the political branches in facilitating this integration. Kennedy noted the compelling government interest in decreasing the effects of de facto racial segregation and isolation and recognized the fallacy of a public/private distinction in defining the constitutional violation of racially segregated educational environments: The plurality opinion is …

Same-Sex Marriage, Same-Sex Cohabitation, And Same-Sex Families Around The World: Why ‘Same’ Is So Different?, Macarena Saez

Scholarly Articles in Law Reviews & Journals

This paper briefly explains the situation of same sex couples in countries that have opened marriage to individuals of the same sex, offers a summary and analysis of the status of same sex unions in several countries that have not opened marriage to same sex couples, and provides a comparative analysis of the most recurrent arguments used in the processes of recognition and denial of same sex unions in the countries reviewed.

Forty years ago, same sex couples were not legally accepted in any country. In the last thirty years, however, around 20% of the world has granted some rights …

Punctuated Equilibrium: A Model For Administrative Evolution, Mark Niles

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Tangled Up In Law: The Jurisprudence Of Bob Dylan, Michael L. Perlin

Articles & Chapters

A a careful examination of Bob Dylan’s lyrics reveals a writer - a scholar - with a well-developed jurisprudence, ranging over a broad array of topics that relate to civil and criminal law, public and private law. His lyrics reflect the work of a thinker who takes “the law” seriously in multiple iterations - the role of lawyers, the role of judges, the disparities between the ways the law treats the rich and the poor, the inequality of the criminal and civil justice systems, the corruption of government, the police, and the judiciary, and more. In this paper, I seek …