Archive for the ‘Civil Rights’ Category

Doe v. Wal-Mart: Must Common Law be Reformed to Protect Workers?

posted by Michael Zimmer

Outsourcing, with or without offshoring, through extended supply chains of goods and services has come to be a common way to organize a business. Using contract law to divide and subdivide what was once a single enterprise (or start one from scratch) into separate legal entities is ever more useful to businesses as they try to cut their costs to become ever more competitive. If vertical integration was once the norm – e.g., Ford’s River Rouge plant where iron ore, coal, sand, rubber came in one end and Ford cars came out the other – the norm is now to have flat and horizontal relation-based groups of legally independent entities that can stretch around the world. The business entities farthest from the core of the enterprise frequently are almost ephemeral in to their organization, ownership and even life span. These frequently operate at the fringe of the formal economy and often in the informal economy where they escape coverage by the domestic labor and employment laws of the place where the work is performed. “Middlemen” operated as a bridge between the core enterprise and the far end of the supply chain where the productive work is actually performed.

The common law generally favors this type of private ordering in part because it looks at so many issues through a lens that sees only the two parties immediately involved in the transaction. The common law does not generally take too much account of the effects on third parties, including workers participating in the full enterprise from one end of the supply chain to the other. What is becoming ever more clear is that the common law leaves labor and employment interests in the dust, unable to keep up, incapable of protecting workers.

A recent common law case demonstrates the freedom enterprise has to organize its affairs to its own interests while escaping any obligation to workers down line in the supply chain. In Doe v. Wal-Mart Stores, Inc., plaintiffs were employees of enterprises located around the world that make and sell goods to Wal-Mart. Wal-Mart’s contracts with plaintiff’s employers all incorporate Wal-Mart’s Code of Conduct obliging these suppliers to provide basic labor standard protections to their employees and allowing Wal-Mart to monitor compliance including canceling contracts if the suppler “fails or refuses to comply” with the Code. Requiring suppliers to agree to the Code shields Wal-Mart from attack, including consumer boycotts, for selling goods made by child labor or under other sweatshop conditions. Nevertheless, the workers at the ends of the supply chain were in fact not provided the labor protections the Code claimed to mandate. Claiming injury from their employers’ mistreatment, plaintiffs sued Wal-Mart because it failed to either monitor or enforce compliance with its Code. The Ninth Circuit, applying traditional common law, rejected all four of plaintiffs’ claims. First, plaintiffs were not third party beneficiaries of the contracts between plaintiffs’ employers and Wal-Mart. Second, Wal-Mart was not a joint employer of these employees with their employers. Third, Wal-Mart owned no duty to plaintiffs and so it could not to be held to be negligent. Fourth, Wal-Mart was not unjustly enriched by the employers’ mistreatment of the plaintiffs. In short, independent contractor law allows Wal-Mart to arrange its legal relationship with its supplier to their mutual advantage while also cutting off the claims of the employees of the suppliers. As has been true from the earliest sweatshop days in the garment business, the actual producers are completely contingent, ready to disappear and to reappear in a new format at a new location at a moment’s notice in order to avoid any obligations owed the workers. Sweatshop conditions have grown far beyond the garment industry to include electronics and many other labor intensive businesses.

So, ironically, those interested in workers’ rights might need to start thinking about reforming the common law, at least as it applies to employees, if law is to be relevant to worker protections. For the purposes of worker protection, enterprises may have to be reconceptualized so that the Wal-Marts of this world are viewed as a single enterprise from the beginning to the end of the supply chains, without regard to the private ordering they engage in to divide the whole into many parts. In fact, if not law, they do form a functional whole, despite the present law that separates them into many independent legal entities. The normative basis for such a new approach is that, if the Wal-Marts of this world are not responsible for labor standards to workers to the very end of the supply chain, then no one is.

If enacting the Employee Free Choice Act and the various civil rights bills pending in Congress face tremendous challenges to be enacted, the question is whether legislation to reconceptualize workers’ rights in these subdivided enterprises has any chance at passage. In the recent era, the common law courts have also retreated from the advances made when what we call “employment law” was just beginning to blossom.

  November 7, 2009 at 3:08 pm   Posted in: Civil Rights, Contract Law & Beyond, Employment Law   Print This Post   No Comments

The Employer’s Strategy in Gross v. FBL Financials

posted by Michael Zimmer

Last Term in Gross v. FBL Financials, a 5-4 decision written by Justice Thomas, the Court decided that a plaintiff bringing a claim of individual disparate treatment age discrimination — an ADEA action — must prove, by a preponderance of evidence, that age was the “but-for” cause of defendant’s treatment of plaintiff. Thus, unlike Title VII, the burden of persuasion never shifts on the issue of linking what happened to plaintiff— “an adverse employment action” — to defendant’s intent to discriminate, even if plaintiff had produced evidence that age was “a motivating factor” of the defendant. This is an important discrimination case since the Court appears to be adding age cases to discrimination cases under the ADA (before its recent amendments) that deserve lesser enforcement than the Title VII claims of race, color, sex, national origin and religion discrimination. It will have ramifications in other areas of discrimination law, including retaliation cases and cases brought under 42 U.S.C. 1981. It even raises the question whether the iconic McDonnell Douglas v. Green approach to proving defendant’s intent to discriminate applies in age act cases. (So far, the two circuits deciding that question continue to apply McDonnell Douglas).

For those not interested in employment discrimination law, of which I suppose there may be a few, this may not seem a startling decision. But for those attuned to discrimination litigation and to Court watchers generally, the decision came as a quite a surprise. Most surprising is that the Court answered a question not presented to it for decision. In most situations when the Court determines that some question other than the one presented has come to the fore, certiorari is dismissed as improvidently granted or the case is remanded to the lower courts to decide this new question.

The question originally presented in Gross was: “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” What this referred to was Title VII authority that allowed burden shifting to the defendant of the issue of linkage between defendant’s intent to discriminate – the employer’s motivation for its action —  and plaintiff’s harm and how that burden shifting might apply in age discrimination cases. Long story short, the Justice O’Connor’s concurring opinion back in a 1989 Title VII sex discrimination case, Price Waterhouse v. Hopkins, came to be viewed by the lower courts as the holding since her opinion was seen as the narrowest basis for the decision in which there was no majority. She required plaintiff to introduce “direct” evidence of discrimination in order to rely on a “substantial factor” test of linkage that shifted the burden of persuasion to the defendant to prove a same-decision defense. The 1991 Civil Rights Act then amended Title VII so that plaintiffs established liability by showing defendant’s intent to discriminate was only “a motivating factor,” with the burden then shifting to the defendant to prove the same-decision defense to full remedies, not to liability. The new provisions did not mention “direct” evidence and so Title VII was interpreted in Desert Palace v. Costa as not requiring any “direct” evidence threshold to the use of the new “a motivating factor” standard.

The question presented in Gross was how that all worked out in an age discrimination case. Up until the employer filed its reply brief, the case proceeded on the assumption that burden shifting applied, with the question being whether or not the plaintiff needed to point out “direct” evidence to take advantage of that shift in the burden of persuasion. Raised for the first time in its reply brief to plaintiff’s brief on the substance, the employer argued that a prior question needed to be answered before that question could be decided: Was burden shifting ever available in an ADEA case?  The Court agreed that it should answer that question instead of the one presented and answered it in favor of defendant. Thus, the original question presented was mooted out.

For Court watchers, the more interesting question is why the employer decided so late in the game to try to shift the focus of the case.

Read the rest of this post »

  November 4, 2009 at 10:43 am   Posted in: Civil Procedure, Civil Rights, Employment Law, Uncategorized   Print This Post   4 Comments

Engaged – and Engaging – Scholarship – Paul Butler’s Let’s Get Free

posted by Rachel Godsil

I am thrilled to be back at Concurring Opinion – thanks to Solangel, Dan and the other regulars for having me.   The timing of this visit is propitious for me – I am returning from a policy-focused (and surprisingly non-academic) sabbatical and I have been thinking a great deal about how best to stay engaged in policy/politics while also returning to academic culture.  The worlds of advocacy and academia are distinct, obviously, and reconciling them can be challenging.

While I have been wrestling with these challenges, some of our academic colleagues, have I think, been meeting them – Richard Thompson Ford’s, The Race Card, Kenji Yoshino’s, Covering are two examples.  Most recently, and in some ways the most salient to my own aspirations, is Paul Butler’s recent book, Let’s Get Free:  A Hip-Hop Theory of Justice. 

Butler’s book is extraordinary – he is a wonderful writer and tells a compelling story about his days as a prosecutor and his own improbable arrest and trial.   But while books by lawyers about their practice are often fun reads – and this one is – what is most impressive is that Butler’s book is a theory of criminal justice.  Butler is doing far more than telling a good story about lawyering.  He has taken his scholarly agenda (which as many of us know has landed him impressive placements in law reviews) and rendered it readable.  He weaves high level traditional theory, data, narrative, very candid self-critique, and insights from hip-hop.  It may seem like a gimmick to have a sentence containing Snoop Dogg and Jeremy Bentham – but in Butler’s book, it’s not.  He obviously knows both intimately and uses them to brilliant effect (and for the record, I don’t particularly like hip-hop). 

Read the rest of this post »

  November 3, 2009 at 3:56 pm   Posted in: Book Reviews, Civil Rights, Uncategorized   Print This Post   No Comments

What would LBJ do?

posted by Spencer Waller

I am almost done with Robert Caro’s Master of the Senate, his magnificent biography of the years Lyndon Baines Johnson served in the United States Senate. This is the third volume of his-yet unfinished biography of the life of LBJ. This work in progress is now approximately 2500 pages long and has not even covered the years where LBJ was Vice-President and President.

All three volumes focus on Johnson’s ambition for power and leadership. Master of the Senate begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design. Even after Senators were directly elected, the longer terms, the rules of the Senate, the role of seniority, committee chairmanships, the ease of filibuster, and the difficulty of cloture have made the Senate a unique institution.

Caro focuses mostly on two developments in the years between 1948 and 1960 before Johnson was elected Vice-President. First, was his meteoric rise as the first (and possibly last) Senate Majority Leader to wield true power. Second, was his burning ambition to be the first Southerner to be elected President since the Civil War.

These two developments combined in Johnson’ epic struggle to pass the Civil Rights of Act of 1957. Out of burning ambition, but also a complicated attitude toward race that was different than most Southern Senators, Johnson wanted, needed, some, any, civil rights legislation to lay the foundation for a run for the White House in 1960. Passing such legislation meant a weak enough bill so the Southern Bloc (his bloc as Caro makes clear in detail) wouldn’t filibuster, and yet enough of a bill that the Republicans, Northern liberals, and Western Democrats could support. To ensure passage, and no filibuster, Johnson had to stitch together a coalition that had never been successfully created on civil rights from the Jim Crow era on.

Caro lays out the cajoling, wheeling, dealing, strong arming, and compromising in the fight for the civil rights bill as well as the complicated linkages between the civil rights bill and other legislation to obtain LBJ’s winning coalition. Among other things, Johnson brokered a deal between Western Democrats who wanted public power and conservative Southern Democrats who wanted the most watered down civil rights bill possible. The Southerners voted for a public power bill they had previously opposed, but did not filibuster the emerging civil rights bills once key changes were made. The Southerners opposed the bill on the floor and voted against it, but would never used the one weapon which could have killed it entirely. The Western Democrats got their public power (at least in the Senate) and supported watering down the civil rights bill which would not hurt them politically back home in that era. Northern Democrats eventually were reconciled to the fact that some bill was better than nothing and Southern Democrats were reconciled to the fact that some bill was inevitable.

Does this remind you of anything currently going on in the Senate? We are seeing the same type of struggle now play out in the Senate over health care reform. Only a fraction of the sausage making is taking place in public, but the same issues of power, leadership, and strategy seems to be unfolding. Some bill, any bill, will probably ultimately pass. Obviously Harry Reid is no LBJ, but the demographics of the House, Senate, and White House are different enough that something is likely to emerge.

But the issues of power, leadership, and strategy remain. Is some bill better than no bill? Is this the first step to more comprehensive reform down the road? Is the watering down of the public option to build coalitions within the Democratic Party, and perhaps a couple of Republicans, leadership, weakness, or just rent seeking? While we will never know, what would LBJ have done on health care, and will we ever see the likes of him as a legislative leader again?

***
Thanks to Danielle, Dan, and the rest of Concurring Opinions for the chance to blog for the month of October. I look forward to the new group of guest commentators for November including my Loyola-Chicago colleague Mike Zimmer.

  October 31, 2009 at 6:58 pm  Tags: Civil Rights, filibuster, Harry Reid, health care, LBJ, Lyndon Johnson, Majority Leader, Master of the Senate, Robert Caro, Senate  Posted in: Civil Rights, Current Events, Health Law, History of Law, Politics, Race   Print This Post   No Comments

UCLA Law Review 57:1 (October)

posted by UCLA Law Review

Volume 57, Issue 1 (October 2009)

Articles

From Privacy To Liberty: The Fourth Amendment After Lawrence	Thomas P. Crocker	1
Who Can Sue Over Government Surveillance?	Scott Michelman	71
Leverage in the Board Room: The Unsung Influence of Private Lenders in Corporate Governance	Frederick Tung	115

Essay

After the Bailout: Regulating Systemic Moral Hazard

Karl S. Okamoto

183

Comments

Evaluating The Public Interest: Regulation Of Industrial Hemp Under The Controlled Substances Act	Christine A. Kolosov	237
Improving The Education Of California’s Juvenile Offenders: An Alternative To Consent Decrees	Stefanie Low	275
The Right to Control One’s Name	Julia Shear Kushner	313

Discourse

Getting the Framers Wrong: A Response to Professor Geoffrey Stone	Samuel Calhoun
The Perils of Religious Passion: A Response to Professor Samuel Calhoun	Geoffrey Stone

Th UCLA Law Review is also pleased to announce the launch of a our new website.

  October 30, 2009 at 4:21 pm   Posted in: Civil Rights, Constitutional Law, Corporate Law, Law Rev (UCLA), Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Uncategorized   Print This Post   2 Comments

Apology Lite

posted by Kaimipono D. Wenger

Earlier this week, the Connecticut Law Review CONNtemplations published my short article, Apology Lite: Truths, Doubts, and Reconciliations in the Senate’s Guarded Apology for Slavery. The article’s abstract is:

The United States Senate recently offered an apology for slavery, which contained an unusual disclaimer prohibiting its use in any claim for monetary reparations. This Essay examines the legal and moral effects of that apology. It analyzes the role of apology within the slavery reparations debate generally as well as the question of whether a stand-alone apology can be a valid form of reparations. It then examines the moral and symbolic effects of the Senate disclaimer, and offers suggestions for bolstering the apology and furthering the restorative justice goals of reparations.

If you’re interested in the topic, please take a moment to read the article; it’s not particularly long. If you’ve read the piece, I’m curious as to your thoughts about the Senate’s guarded apology. How serious are the concerns set out in Apology Lite? Can a lite apology be effective? Is it better than no apology? And, what do you think about my suggestions for bolstering the Senate apology?

  October 30, 2009 at 3:48 pm  Tags: apology, Reparations, slavery  Posted in: Civil Rights, Reparations   Print This Post   One Comment

You’ve lost that Loving feeling

posted by Kaimipono D. Wenger

An incredible story in today’s news:

A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.

“I’m not a racist. I just don’t believe in mixing the races that way,” Bardwell told the Associated Press on Thursday. “I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.”

Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.

It’s 2009, the Obama era, and some folks (a JP!) still haven’t gotten the memo on Loving v. Virginia. Mind-boggling.

  October 15, 2009 at 3:54 pm  Tags: Civil Rights, Loving v. Virginia, marriage, Race  Posted in: Civil Rights, Constitutional Law, Family Law   Print This Post   One Comment

The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid

posted by Spencer Waller

By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.

The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.

On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.

By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.

To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.

I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.

  October 6, 2009 at 9:55 am  Tags: Chicago, Civil Procedure, Civil Rights, class actions, Constitutional Law, Olympics  Posted in: Civil Procedure, Civil Rights, Constitutional Law, Culture, History of Law, Race, Supreme Court   Print This Post   One Comment

Cyber Gender Harassment: “Skanks of NYC”

posted by Danielle Citron

Dan, Kaimi, and Elizabeth have offered some terrific insights on the issues raised by the court’s unmasking of the “Skanks of NYC” blogger.  Kaimi’s post “Cyber Civil Rights vs Privacy in the ‘Skanks in NYC’ case” in particular did a superb job capturing the issue as discrimination.  I write here to follow up on issues related to the case that folks have discussed with me.

Some have asked whether this case warrants treatment as a cyber civil rights issue since it “is just a girl cat fight.”  To be sure, women can deprive other women of their right to be free of unequal treatment on the basis of their gender.  But the larger concern is, for me, convincing skeptics to see the blog attacks on Ms. Cohen as more than just an interpersonal disagreement between two women, something that tort law can handily address on its own, but rather as gender discrimination.  Tort law would not reach the harm experienced by Ms. Cohen, women, and society due to the blog’s interference with her right to equal treatment.  It would not address the stigma that Ms. Cohen experienced a a result of the blog’s message that she had worth only as a sex object.  Much like sexual harassment in the workplace, the blog suggested that Ms. Cohen constitutes an object of sexual derision, not a person worthy of respect.  Moreover, they interfered with Ms. Cohen’s right to work as an equal.  According to Ms. Cohen, potential employers asked her about the blog, which quite possibly deterred them and others from hiring her.  In a world filled with aspiring models, employers might chose to work with someone who comes with less baggage, even if they do not believe the postings a wit.  And the blog postings harm women as a group and a society as a whole by entrenching gender hierarchy in cyberspace.  Whether current law would support such a claim is certainly in dispute, but such a law could be crafted.  Such a law would play an important expressive role–it would change the social meaning of such harassment of women.

Indeed, as privacy scholar Ian Kerr suggested, maybe the media’s attention to the case can be attributed to its leering interest in a “battle” between two beautiful women?  Maybe coverage of the issue reflects a deeper misogyny: the story has attracted so much attention because it produces an image of women as female wrestlers of sorts, battling it out in their bikinis?

Read the rest of this post »

  August 26, 2009 at 12:58 pm   Posted in: Anonymity, Civil Rights, Cyber Civil Rights, Cyberlaw, Privacy, Uncategorized   Print This Post   2 Comments

The New South and the Voting Rights Act, Post-NAMUDNO

posted by Michael Kang

The current New Yorker features an essay by Malcolm Gladwell on To Kill a Mockingbird and the racial politics of the Jim Crow South. Gladwell criticizes Atticus Finch, an iconic figure among many liberals, for accommodating ingrained racism and passing off to himself what was often “homicidal hatred of black people” as excusable human frailty. Gladwell’s depiction of the Jim Crow South is familiar to anyone with a passing familiarity with the civil rights movement, and it contrasts sharply with sunnier contemporary accounts within election law circles of the New South (where I now live), now reformed by the Voting Rights Act. A common response to the Supreme Court’s recent Voting Rights Act decision in NAMUDNO v. Holder, for instance, was to note the triumph of racial progress and the outdatedness of the Voting Rights Act, once born as a forceful response to the Jim Crow South.

Of course, the presidential election of Barack Obama is the inspiration for much of the racial triumphalism. As Akhil Amar put it, “Obama’s very candidacy is a powerful embodiment of a Reconstruction vision in which blacks, under the Fifteenth Amendment, would be full political equals with a right to vote and to be voted for on the same terms as white.” For many, Obama’s election represented the historic moment signaling the irrelevance of race and race-specific remedies in voting rights. As Paul Krugman argued, “Racial polarization used to be a dominating force in our politics, but we’re now a different, and better, country.”

However, Obama’s election demonstrated not only American racial progress over the last fifty years, but also its surprising stagnation in some parts of the South. Particularly in the deeper South, racial polarization seemed not to have diminished nearly as much. The available data, summarized in an amicus brief written by Nate Persily, Charles Stewart, and Steve Ansolabehere for NAMUDNO, confirms that Obama actually received a lower percentage of the white vote in a number of southern states than John Kerry, who was clearly a weaker candidate in a much more difficult election year for Democrats in 2004. Such patterns of racial polarization need not always suggest race-based reasons for the divergence in voting patterns, but it is difficult not to draw race-based conclusions from Obama’s lack of success among white voters in these areas, particularly given Obama’s advantages in 2008 compared to Kerry in 2004.

In other words, when it comes to race in American politics, things have both changed a lot and stayed the same a bit. Things certainly have changed more than they have stayed the same in most of the country, and for the better, but it doesn’t mean that Section 5 of the Voting Rights Act isn’t still useful in the deep South, where it always has had its most meaningful bite. I have emphasized the continuing relevance of Section 5 even while acknowledging the racial progress we’ve seen since the Jim Crow era that Gladwell depicts in his New Yorker essay. Others, however, argue that Congress should refrain from trying to “save Section 5” of the Voting Rights Act and instead embrace a non-race based “right to vote” model for voting rights.

I actually agree about the desirability of national efforts at universal laws to protect the right to vote for all voters against the new vote denial, but I see an implicit choice between maintenance of the Voting Rights Act and new efforts to bolster a universal right to vote as a false one. There are pitfalls when historic legislation like the Voting Rights Act cast such a big shadow that it threatens to bind up newer, overlapping efforts in the same policy domain, but these pitfalls are not inevitable. We can have both, please. The Voting Rights Act may continue to do valuable work even as the voting rights community expands its attention to non-race based concerns about voter identification, restrictive registration requirements, and voting technology, among other things. The success of the past need not define the present, but it is not inconsistent with it either.

Wikimedia Commons Image

  August 7, 2009 at 6:48 am   Posted in: Civil Rights, Constitutional Law, Current Events, Politics   Print This Post   4 Comments

A Note on Comprehensive Immigration Reform

posted by Kevin Johnson

For several years, “comprehensive” immigration reform has been discussed in the U.S. Congress and among the general public.   Supporters contend that enforcement-only measures — such as extending the border fence, increasing the number of Immigration & Customs Enforcement officers, efforts to increase deportations, etc. — will not address the true causes of immigration, especially the thirst of the American economy for relatively inexpensive labor.   Although “comprehensive” immigration reform has meant many things to many people, reform proposals often include a regularization program for certain group of undocumented immigrants (i.e., the dreaded “amnesty”), some kind of guest worker program supported by agricultural and other employers, and increased immigration enforcement measures.  Some proposals also have included increasing the number of visas to eliminate long lines in certain visa categories and increased employment visas. 

In the spring of 2006, hundreds of thousands of people — U.S. citizens as well as immigrants — marched in cities across the United States, protesting the tough-on-immigrants Sensenbrenner bill passed by the U.S. House of Representatives in December 2005.  Two U.S. Senators, including now-President Barack Obama, participated in the marches.

President Obama long has supported comprehensive immigration reform.  Supporters of reform were buoyed by his election, feeling that comprehensive immigration reform just might finally be on the horizon.  Well, it just may — or may not — be.

Immigration reform is politically difficult in the best of times — and these most definitely are not the best of times economically in the United States.  Although some members of Congress — Congressman Luis Gutíerrez immediately comes to mind, continue to push for immigration reform, the economy and health care reform now seem to dominate the Congressional legislative agenda.

As the old Brooklyn Dodgers slogan (”Wait until next year!”) went, some members of the Obama administration have argued for restraint and to wait until next year.  But, next year is an election year in Congress.  Enacting legislation on a contentious issue that touches on volatile issues of race and class, seems unlikely in an election year.

At the same time, the Obama administration seems devoted to pursuing more and more immigration enforcement measures.  For discussion of the latest measure, click here.  Department of Homeland Security Secretary Janet Napolitano does not seem to have found an enforcement measure that she does not like.   The political calculus  appears to be that, by so doing, the administration will gain the public trust on enforcement and then be in a better position to seek immigration reform that benefits immigrants.  This strategy was pursued — very unsuccessfully — by the Bush administration — more and more enforcement.  We saw infamous workplace raids in New Bedford, Massachusetts and Postville, Iowa, record levels of deportations year after year, aggressive positions in the courts (while always disputing the court’s jurisdiction), and the like.   The Bush administration ended up with more (and more) enforcement and no immigration reform.

This is precisely the risk that the Obama administration runs.  As it fashions and implements more and more immigration enforcement measures, it may never be able to push balanced immigration reform through Congress.  And delay is dangerous because there is always some reason to put off a national debate on a controversial issue.

Hopefully, the Obama administration knows what it is doing politically on immigration.  Latinos, immigrant rights advocates, and employers have been patient for now.  But, they all have seen what happens when immigration is put off until the second term of a Presidency.  As President Bush acknowledged, such delay was a mistake before — and, many think, a mistake now.

  July 29, 2009 at 9:23 am   Posted in: Civil Rights, Immigration   Print This Post   11 Comments

Professor John Doe Is An Ugly [Insert Racial Slur]!

posted by Elizabeth Nowicki

Law students sometimes use the internet to widely disseminate racist or gendered comments about women and minority faculty members. For example, I have heard about law students using teaching evaluation forms or Facebook or Myspace to make comments to the effect that that a female faculty member is a bitch with PMS or that an African-American faculty member is a [insert racial slur]. Indeed, the Auto-Admit debacle from a couple years back revealed that law students or potential law students seem to at least sometimes use the internet to convey vicious gendered and/or racist comments.

When I hear about these situations, I always wonder about the “character and fitness” implications. It seems to me that a law student who is publicly judging a female faculty member negatively on a gendered basis or who is characterizing minority faculty members by way of stereotyping and ugly slurs is raising questions about his/her character and fitness to practice law. In the same way that a lawyer who embezzles is not fit to practice, one might argue that a law student who dismisses individuals with ugly characterizations based only on race or gender might also be of questionable character for purposes of practicing law. Yet not everyone agrees with this assessment, and, with respect to law students using the internet for such attacks, there has not been a lot of discussion about the character and fitness issues raised.

Therefore, the AALS Section on Women in Legal Education will be presenting a panel at the AALS Annual Meeting in New Orleans examining the issues raised – including the character and fitness issues – when law students, lawyers, judges, or potential law students use the internet to make gendered or racist comments. If a student posts on her Myspace page that Professor John Doe, who teaches Gender and Race and the Law, is an “ugly [insert racial slur] who only has a job due to affirmative action,” does that pose a character and fitness concern? Should we care?

There is a call for papers for this panel presentation, and anyone interested in submitting a paper or paper proposal is welcome to e-mail me for the details.

  July 9, 2009 at 6:29 pm   Posted in: Civil Rights, Conferences, Cyber Civil Rights, Feminism and Gender, First Amendment, Intellectual Property   Print This Post   11 Comments

Racial Profiling Still Pervasive in United States: Does Anyone Care?

posted by Kevin Johnson

Remember when racial profiling was an evil that President Bill Clinton, George W. Bush, and then-Attorney General John Ashcroft claimed would soon be ended.  In 2000, Democratic candidates Al Gore and Bill Bradley sparred in a debate in the Apollo Theater in Harlem about who as President would be tougher on racial profiling.

The basic criticism of racial profiling is simple.  A police stop for “Driving while  Black” or “Driving while Brown” was unaccaptable as well as unlawful.  Police should stop suspects based on individualized suspicion rather than reliance on statistical group probablities.  Minorities for years had been complaining of profiling and it appeared that the political will to attack it may have come.  (The Supreme Court in Whren v. United States (1996) had undercut efforts to end racial profiling in traffic stops through the Fourth Amendment and left a tootless Equal Protection remedy in its place.) Many police departments created policies on profiling; others began to collect  data on traffic stops.  A much-publicized report from New Jersey revealed disparities in the searches of the vehicles of minorities.

Were the promises to end racial profiling kept? Apparently not.  A report released by the American Civil Liberties Union and the Rights Working Group at the end of June concluded that widespread racial profiling by law enforcement remains a pervasive problem throughout the United States.

What happened?  The persistence of racial profiling should be no real surprise.  As we all know, law enforcement is difficult to reform.  Moreover, the tragic events of September 11, 2001 led to a resurgence of support, including by some prominent academics,  for the profiling of Arabs and Muslims in the newly-proclaimed “war on terror.”  Special registration and a whole plethora of immigration and other security measures targeted Arab and Muslim noncitizens.

Given the reliance on statistical probabilities based on race, national origin, and religion in the “war on terror,” it proved to be difficult to continue the full court press on eradicating racial profiling in ordinary criminal law enforcement.  The so-called logic of profiling allows statistical probabilities to be considered in terrorism and criminal law enforcement.  The result was that the  challenge to racial profiling ebbed.

It should be no surprise that, with the resurgence in racial profiling in the “war on terror,” little has been accomplished since 2001 in the efforts to end racial profiling in ordinary criminal law enforcement.

And the problem of profiling is not limited to the “war on terror” and ordinary criminal law enforcement.  Racial profiling also taints immigration enforcement, with many Latinos and Asian Americans (citizens as well as immigrants) claiming that they are too often profiled by immigration authorities for being undocumented immigrants.  This is a particular problem in the Southwest in the U.S./Mexico border region.  The Supreme Court has sanctioned this practice.  In the 1975 decision of United States v. Brignoni-Ponce, the Court authorized the consideration of “Mexican appearance” as one factor in an immigration stop.  Since that decision, “Mexican appearance” has come to dominate immigration enforcement.  Latinos regularly complain of profiling — as well as other forms of abuse — at the hands of Immigration and Customs Enforcement.   Click here for analysis of the Brignoni-Ponce decision.

The bottom line is this.  Racial profiling remains central to law enforcement in the United States.  Is there the political will to eradicate racial profiling?   Or is the maintenance of racial profiling on the streets of America another collateral impact of the nation’s “war on terror”?

  July 4, 2009 at 6:32 am   Posted in: Civil Rights, Criminal Procedure, Race   Print This Post   No Comments

Prop 8 ruling to come down on Tuesday

posted by Kaimipono D. Wenger

From the court’s own website:

The California Supreme Court has announced that it will issue an opinion in three cases challenging the constitutionality of Proposition 8 at 10 a.m. on Tuesday, May 26, 2009.

I’ve previously blogged some analysis of the case. Like most other observers, I expect that the court will reject both the revision/amendment challenge and the fundamental rights challenge, but will not retroactively nullify the 18,000 marriages that took place before November. That would be, in effect, a partial victory for both sides.

I guess we’ll find out one way or another this Tuesday.

  May 22, 2009 at 1:46 pm  Tags: california, proposition 8, same sex marriage  Posted in: Civil Rights, Constitutional Law, Current Events, Feminism and Gender   Print This Post   One Comment

Personality Types, Creativity, and Same-Sex Marriage

posted by Naomi Cahn

Co-authored with June Carbone 

UCLA’s Williams Institute has just issued two studies on the economic effects of gay marriage. The first study, on the relationship between a state’s approach to marriage equality and population migration – documents that members of the “creative class” –  people who “create’ as their job – who are in same-sex relationships were much more likely to move to Massachusetts following the Goodridge decision and the legalization of same-sex marriage. The study’s author suggests that this could improve help the state’s economy in the long-term. A second study shows that same-sex weddings have added over $100 million to the Massachusetts economy  (although this is not even a drop in the bucket in the $300 billion spent in Massachusetts in, for example 2004). Serendipitously, David Brooks wrote an op ed in the New York Times today, “In Praise of Dullness,” discussing  a different study that found the ideal C.E.O. is ” humble, diffident, relentless and a bit unidimensional,” in short, “not the most exciting people to be around.”  This study complements the work of journalists and political scientists, such as Bill Bishop and Andrew Gelman,  who increasingly find that the high tech centers of the country (including the Boston corridor) attract that same creative class open to new ideas and approving of same sex marriage, while the conscientious, more religious, and conventional family oriented types are drawn to other regions – regions that tend to oppose same-sex marriage.

Do these divisions suggest that opposition to same-sex marriage is in our genes – or at least our personality types? The CEOs and the creative class of the new economy may not belong to different tribes, but they tend to see the world through different lenses that color  their  perceptions.      Read the rest of this post »

  May 19, 2009 at 1:34 pm  Tags: cultural frameworks, economics, gay marriage  Posted in: Civil Rights, Family Law   Print This Post   No Comments

Knowledge of Jim Crow events: A quick, informal survey

posted by Kaimipono D. Wenger

I’m curious as to what level of knowledge people have of some important Jim Crow events. If you’ve got five minutes, please make a comment, to fill this out this brief, completely unscientific survey.  Feel free to do so anonymously or pseudonymously.  I’m not trying to embarrass anyone, I just wonder to what extent certain events are known or unknown, and this is enough to give me some general sense. Read the rest of this post »

  May 18, 2009 at 11:15 pm  Tags: Civil Rights, jim crow, Race, survey  Posted in: Civil Rights, Race   Print This Post   38 Comments

Government Lawyers’ Ethical Obligations and the War on Terror

posted by Andrew Taslitz

Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.

The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.

Read the rest of this post »

  May 8, 2009 at 4:05 pm  Tags: Add new tag  Posted in: Book Reviews, Civil Rights, Constitutional Law, Criminal Procedure, Culture, Current Events, History of Law, Law Practice, Politics   Print This Post   5 Comments

The Blossoming Union of Same-Sex Marriage and Religious Freedom

posted by Ira Lupu

After approval of Proposition 8 in California last fall, who would have expected to find the movement for same-sex marriage and concern for religious freedom on common ground in the spring? As legislatures in Vermont and Connecticut have just demonstrated, however, a long-overdue reconciliation between claims of marriage equality and those of religious liberty is there for the taking.

In the fight over Proposition 8, social conservatives used arguments about religious freedom as a sword. Their most prominent arguments were spectacularly overstated. Some proponents of Prop 8 warned, for example, that recognition of gay marriage would lead to hate speech prosecutions of anti-gay pastors, and loss of tax exemption for churches that refused to host same-sex marriages. Though neither of these developments was remotely likely, some voters were apparently moved by these assertions to support Prop 8.

Very recently, however, same-sex marriage has gotten a tremendous boost. In early April, the Iowa Supreme Court and the Vermont legislature, acted in favor of same-sex marriage. On April 23, the Connecticut legislature did likewise. But Vermont and Connecticut, acting through the legislative process, took steps that are not open to courts in cases like that in Iowa. Both the Vermont and Connecticut legislatures acted to protect religious freedom as well as marriage equality. The recently enacted Vermont law recognizes the right of clergy to not preside over same-sex marriages; the right of religious organizations to refuse the use of their facilities to celebrate a same-sex marriage; and the right of fraternal benefit societies, such as the Knights of Columbus, to refuse to provide insurance benefits to same-sex partners of its members if the organization has religious scruples against doing so. The Connecticut law includes those three safeguards for religious liberty but goes farther still. It insulates religious organizations from liability for refusing to provide any goods or services when the request for such goods or services arises from a same-sex marriage – so, for example, a religiously affiliated college would not have to make its married student housing available to a married same-sex couple. And the Connecticut law exempts adoption and foster care services run by religious organizations from any obligation to serve same-sex couples, so long as these services are not government-funded. Thus, in Vermont and Connecticut, religious liberty became a shield for religious freedom against the intrusion of same-sex marriage on traditional religious values, not a sword to be used against all recognition of such marriages.

Read the rest of this post »

  May 6, 2009 at 6:00 am   Posted in: Civil Rights, Constitutional Law, Politics, Religion   Print This Post   9 Comments

Public opinion on same-sex marriage

posted by Sonja Starr

Thanks again to Danielle and Dan for inviting me to blog here this month. I didn’t expect, when I started this guest-blogging stint, that same-sex marriage would be a primary focus of my posts–it’s something I care about as a citizen, but not one of my academic research fields. But my posts have been largely driven by events, and it seems clear that April 2009 will be looked back upon as a turning point in this civil rights movement. The month started with major developments in Iowa, Vermont, and DC, and today it ends with what strikes me as even bigger news: the Washington Post and ABC News released what I think is the first nationwide poll showing that more respondents support same-sex marriage than oppose it. The split (49% to 46%) is within the poll’s margin of error, but even so, it represents a pretty dramatic shift–less than three years ago, the same poll split 58% opposed and 36% in favor.

The Post article treats this as being largely a story about demographics, and of course that is part of the explanation: young people are much more likely to support marriage equality than older people. But the composition of the population hasn’t changed fast enough to explain shifts of this magnitude in a few years–it’s also got to be that a lot of people, young and old, have changed their minds. As I suggested in an earlier post, court decisions might have contributed to that change–by direct persuasion, by starting a statewide or nationwide conversation that gets people to question traditions, or simply by allowing gay and lesbian couples to begin to marry (which could shape public opinion as people realize that fears about the effects on marriage as a social institution have not panned out).

In any event, whatever the role of courts in bringing about this cultural shift, now that it’s happening, it suggests that the courts will probably play a less central role in pushing the movement toward marriage equality forward in the future. This is increasingly becoming a battle that marriage equality advocates can win in legislatures and at the ballot box. As the poll numbers shift, we’re likely to see increased support for same-sex marriage from politicians who might have been reluctant to take that stand previously. (I suspect this will eventually include President Obama.) That support may be led by Democrats, but it will cross party lines. Of course, this cultural shift is far from being complete, as California voters demonstrated a few months ago. There are still a substantial number of energetic opponents (like the National Organization for Marriage, which I’ve noticed seems to have dropped its priceless “2M4M” slogan). But the road ahead may not be that long. Check out statistician Nate Silver’s state-by-state projections–a few weeks ago, he predicted that every state will have majority support for marriage equality by 2024. Silver also projected that marriage equality would achieve majority support nationwide by “sometime in the 2010s”–so if the Post/ABC News poll is correct, Silver’s projections may have been on the conservative side.

Increasing public support matters, and not just because it is likely to affect the ultimate state of the law–I suspect that given a choice between achieving marriage equality through the courts and achieving it through the democratic process in the same timeframe, just about every equality advocate would prefer the latter (even if the court decisions couldn’t be overturned by referendum). That’s because the battle over same-sex marriage is ultimately one about social meaning–it’s about the expressive power of the law. Sure, it’s about the various legal benefits attached to marriage too, but if that were all it was about, then both sides of the struggle would treat civil unions as being interchangeable with marriage, and they don’t. The recognition of committed same-sex unions as marriages is a social statement that such unions, and the men and women in them, are worthy of respect rather than stigma. So if the ultimate goal is to foster inclusive social norms, then changing public opinion isn’t just a sign that the movement may achieve its goals–in an important sense, changing public opinion is the central goal. Court decisions, in contrast, can only ever be a step along the way.

  April 30, 2009 at 2:07 pm   Posted in: Civil Rights, Constitutional Law, Politics   Print This Post   7 Comments

Affirmative Action Under Review Today: Ricci v. DeStefano

posted by Danielle Citron

This morning, the Supreme Court will hear arguments in Ricci v. DeStefano, an affirmative action case involving the promotion of firefighters in New Haven, Connecticut. According to The New Republic’s Jeffrey Rosen, the city administered a promotion test in 2003, which had been validated by independent experts pursuant to federal law to ensure that it focused on job-related skills instead of purely cognitive ones. None of the top-scoring candidates for 15 available positions were African American. As Rosen explains, a local preacher contacted the mayor to suggest that the test should not be certified due to its racial disparities. The local civil-service board deadlocked as to whether the test should be certified. As a result, the city declined to certify the test, denying promotions to those who passed the test. Nineteen white fire fighters, along with one Hispanic fire fighter, sued the city for its refusal to certify the test.

The case highlights an important tension between Title VII law and constitutional requirements deriving from Equal Protection. Title VII requires employers to examine whether facially neutral hiring practices that produce a disparate impact are justified on grounds of “business necessity.” In that sense, Title VII asks employers to focus on the race of the candidates that the tests produce. At the same time, Equal Protection case law addressing employment practices appears to forbid racially-conscious hiring practices. This leaves employers like the New Haven Fire department in a bit of a bind. May they take the race of the firefighters eligible for promotion into account or not? In a post on Balkinization yesterday, Deborah Hellman criticizes the fact that the briefs in the case focus heavily on the question of what exactly the New Haven fire department intended to do. As she explains, one can easily describe the city’s aim as either racial balancing (forbidden under the Equal Protection Clause) or a good faith attempt to comply with Title VII (which is permitted). In her excellent book When is Discrimination Wrong?, Hellman carefully and cogently argues that when it comes to determining whether state action constitutes wrongful discrimination, “It’s Not the Thought that Counts.”

Here’s how her view would handle Ricci v. DeStefano. First, her approach would pose the question as one of objective interpretation rather than of mining the subjective motivations or intentions of the New Haven Civil Service Board. Her approach would ask: may a state employer decline to hire on the basis of a facially neutral hiring method when doing so produces a disparate impact? We do not need to know whether the Board declined to use the test because of the disparate impact. We need only ask whether it is constitutionally permissible not to use a test with a disparate impact. The answer to this question is likely to be yes. But that’s not all. As she also discusses in the book, facially neutral action that produces disparate impact can sometimes violate Equal Protection. It does so when the social meaning of the action demeans anyone or any group. So, as Hellman explains in the book, the Court wrongly decided the 1971 case, Palmer v. Thompson, because the city of Jackson, Mississippi’s decision to close the only public swimming pool rather than integrate was clearly understood as sending the message that white kids couldn’t possibly swim with black kids, thereby demeaning African-Americans. The relevant question in Ricci is thus does the Board’s decision to abandon the test and promote nobody demean the high scoring white and one Hispanic firefighter? While Hellman’s approach doesn’t tell us how she would answer this question, I think the clear answer here is that it would not.

  April 22, 2009 at 10:00 am   Posted in: Civil Rights   Print This Post   5 Comments

• « Older Entries