In this second of a series of columns, Illinois law professors Lesley Wexler, Jennifer Robbennolt, and Jennie Pahre continue their discussion of the legal mechanism of cy pres—by which a court decides a remedy based on how closely it serves the intended purpose (originally from the law of trusts). The authors draw upon the plot and characters of the television show Fleabag to illustrate how restorative justice might help re-center the #MeToo debate away from its seemingly sole punitive focus and more towards the twin purposes of victim restoration and deterrence.
Brazilian legal scholar Igor de Lazari, Brazilian law professor Antonio G. Sepulveda, and attorney David S. Kemp compare the evolving recognition of the rights of LGBTQ individuals in Brazil and the United States. De Lazari, Sepulveda, and Kemp describe specifically the role of courts in recognizing these rights and establishing protections in the absence of clear legislation.
SMU Dedman School of Law professor Joanna L. Grossman describes recently passed anti-discrimination laws in New York that improve protections for victims of sexual harassment and assult. Grossman describes the role of the #MeToo movement in increasing awareness of the prevalence of sexual harassment and assault and praises New York for being a leader in protecting the rights of women.
In honor of the 100th anniversary of Illinois’ ratification of the Nineteenth Amendment, Illinois law dean and professor Vikram David Amar reflects on what it means to be free from discrimination in the right to vote. Amar points out the connection between the right against discrimination in voting and the right discrimination in jury service and calls upon us all to consider what full, equal citizenship means.
SMU Dedman School of Law professor Joanna L. Grossman comments on a recent unanimous decision by the U.S. Supreme Court clarifying a procedural point about Title VII and the requirements of employees filing discrimination claims in federal court. As Grossman explains, the Court’s opinion correctly minimizes the importance of a technical requirement of employees and might as a result provide greater protection to employees who suffer from workplace discrimination.
Cornell law professor Michael C. Dorf comments on three cases in which the US Supreme Court recently granted review that together present the question whether Title VII of the Civil Rights Act of 1964 forbids employment discrimination on the basis of sexual orientation and gender identity. Dorf points out that the cases pose a test for the Court’s conservative majority—whether they will keep faith with their textualist commitment and rule for the plaintiffs or instead follow their conservative social views and rule for the defendant employers.
NYU law professor Samuel Estreicher comments on a recent decision by the US Court of Appeals for the Seventh Circuit that purports to interpret the Age Discrimination in Employment Act (ADEA) based on a textualist approach. Estreicher argues that the interpretation erroneously ignores the clear purpose of ADEA and constitutes a highly abstract interpretive venture that departs significantly from the legislators’ manifest intent.
Cornell law professor Sherry F. Colb describes two different narrative lenses through which one could perceive (and interpret) the shooting of an unarmed African American man by a white police officer: the “Blue Lives Matter” narrative and the “Black Lives Matter” narrative. Colb explains how such narratives shape public reactions to such incidents, and she calls upon everyone to pay attention to the facts and feel less wedded to our narratives so that we may be better able to deal with and sometimes even prevent future hardship.
SMU Dedman School of Law professors Joanna L. Grossman and Grant M. Hayden comment on a concurring opinion by a Fifth Circuit judge that goes well out of its way to make illogical arguments regarding transgender discrimination under Title VII. Grossman and Hayden briefly describe the history of courts’ interpretation of Title VII and explain, point by point, why Judge James Ho’s writing is merely an “op-ed piece masquerading as a concurring opinion.”
Illinois law dean Vikram David Amar and professor Jason Mazzone continue their discussion of whether law reviews may take race and gender into account in selecting members and articles. In this second of a three-part series of columns, Amar and Mazzone analyze some of the key substantive arguments made by the plaintiff in the lawsuit.
SMU Dedman School of Law professor Joanna L. Grossman praises a recent decision by a federal district court allowing a claim of pregnancy discrimination to go to trial and denying the employer’s motion for summary judgment. Grossman describes the factual and legal background of the case and explains how the court used two methods to find that the case should go to trial on the merits.
In this second of a two-part series, SMU Dedman School of Law professor Joanna L. Grossman and University of Pittsburgh law professor Deborah L. Brake revisit Title IX and the Department of Education’s proposal to rework how sexual assault and harassment claims are addressed by educational institutions that receive federal funds. Grossman and Brake argue that the Department’s proposed changes will ultimately result in a chilling effect on victims of sexual harassment coming forward and reporting their abuse.
Cornell law professor Michael C. Dorf discusses the Department of Education’s recent Notice of Proposed Rulemaking rules requiring due process protections for those accused of sexual assault or harassment in Title IX cases. Dorf provides a history of Title IX, explaining how the Obama administration issued guidance and instituted reforms to how institutions should approach addressing allegations of such conduct. He acknowledges the Department of Education's shift in policy under the Trump administration that led to its proposed rulemaking issuance, and argues that the Department only has the authority to permit these additional due process protections in most instances, rather than outright require institutions to adhere to them.
SMU Dedman School of Law professor Joanna L. Grossman and University of Pittsburgh law professor Deborah L. Brake discuss a proposal by the Department of Education that would roll back Obama-era guidance on how claims of sexual assault and harassment are handled by educational institutions that receive federal funding. In part one of this two-part series, Grossman and Brake provide historical background on Title IX, explain regulations implemented during the Obama administration, and touch on how the Trump administration’s rollback may affect student victims of sexual assault and harassment.
SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by a federal court in Florida correctly denying an employer’s motion for summary judgment in a workplace rape case that deserves a full trial on the merits. Grossman points out that anti-discrimination law is not sufficient to eliminate, or even substantially reduce, the incidence of sexual harassment at work, but it is unquestionably necessary to address that problem and protect survivors.
SMU Dedman School of Law professor Joanna L. Grossman comments on a lawsuit recently filed by the EEOC against United Airlines alleging that the airline failed to protect a female flight attendant from sexual harassment by a pilot, in violation of its obligations under federal anti-discrimination law. Grossman argues that while United is entitled to its day in court, it will need compelling evidence to refute the allegations in the EEOC's complaint.
Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, comments on a laudable decision by a federal district court judge in Connecticut that recognizes children as persons with constitutional rights, in the midst of the Trump administration’s separation of children from their parents at the border. Hamilton calls upon the Senate to ratify the Convention for the Rights of the Child, and upon Congress to pass simple legislation that would ban such separations.
Illinois Law dean and professor Vikram David Amar argues that while Justice Anthony Kennedy’s retirement from the US Supreme Court will change the institution, it may not result in a significant shift to the right on some hot-button issues, as many anticipate. Amar explains that the greatest casualty of Justice Kennedy’s retirement might be electoral reform—not reproductive rights, same-sex marriage, or affirmative action.
GW Law professor and economist Neil H. Buchanan argues that the pro-business, anti-union expressed during oral argument and in the majority opinion in Janus v. AFSCME, written by Justice Samuel Alito and joined by the other conservative justices including Justice Anthony Kennedy, epitomizes both Kennedy’s right-wing fundamentalism and the direction in which the Court would have continued to move even if he had chosen not to retire. Buchanan points out that the trend among the conservative justices is to insulate conservatives—especially Christian Republicans—from having to be in any way connected to anything with which they disagree, such as collective bargaining, sexual liberation, or provision of contraception.
SMU Dedman School of Law professor Joanna L. Grossman gives a brief overview of the #MeToo movement and describes the great strides our society has made, yet also the challenges it still faces. Specifically, Grossman points out that it is now time for businesses and lawmakers to figure out how best to prevent sexual harassment while protecting women’s career opportunities.