Pub Date : 2010-11-07DOI: 10.4013/rechtd.2011.31.05
Mootz, J. Francis
This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.
这篇文章将出现在一个比较法律解释学研讨会上，该研讨会包括四篇美国学者和四篇巴西学者的文章。我认为，即使我们用拉里·索伦(Larry Solum)、基思·惠廷顿(Keith Whittington)和其他学者更为谨慎和平衡的哲学著作来补充斯卡利亚大法官的解释学幻想，以斯卡利亚大法官在哥伦比亚特区诉海勒案(District of Columbia v. Heller)一案中的观点为例的“丑陋的美国人”解释学也是不幸的。然而，律师和法官在日常法律实践中务实的解释工作显示出我们美国人可以引以为傲的一种坦率的正直。
{"title":"Ugly American Hermeneutics","authors":"Mootz, J. Francis","doi":"10.4013/rechtd.2011.31.05","DOIUrl":"https://doi.org/10.4013/rechtd.2011.31.05","url":null,"abstract":"This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the \"ugly American\" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133177899","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2010-08-23DOI: 10.4013/rechtd.2011.31.06
John T. Valauri
What is the continuing relevance of hermeneutics to legal theory in general and to constitutional theory in particular if we are all originalists now? Both seem to be vital despite the decline of interest in hermeneutics recently. This article argues for the continuing relevance of hermeneutics to both fields because of the centrality of issues of application and practical reasoning in both. Law seeks for find the meaning of texts applied over time; legal texts are truly letters of transit. That we are all originalists, yet still have the same sort of interpretive debates we have always had, only indicates the continuing need to work on hermeneutic questions of application and practical reasoning. These issues are explored in the context of the Dworkin/Scalia discussion of the distinction between expectation and semantic originalism.
{"title":"As Time Goes by: Hermeneutics and Originalism","authors":"John T. Valauri","doi":"10.4013/rechtd.2011.31.06","DOIUrl":"https://doi.org/10.4013/rechtd.2011.31.06","url":null,"abstract":"What is the continuing relevance of hermeneutics to legal theory in general and to constitutional theory in particular if we are all originalists now? Both seem to be vital despite the decline of interest in hermeneutics recently. This article argues for the continuing relevance of hermeneutics to both fields because of the centrality of issues of application and practical reasoning in both. Law seeks for find the meaning of texts applied over time; legal texts are truly letters of transit. That we are all originalists, yet still have the same sort of interpretive debates we have always had, only indicates the continuing need to work on hermeneutic questions of application and practical reasoning. These issues are explored in the context of the Dworkin/Scalia discussion of the distinction between expectation and semantic originalism.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127175692","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On Thursday, July 16, 2009, white male police officer James Crowley was called to the home of prominent black male scholar Henry Louis Gates, Jr. on a report of a potential break-in. After confirming that no break-in had occurred and Gates’s identity, Crowley arrested Gates for disorderly conduct. Gates was promptly released without charges, and claimed he had been racially profiled. After the event became a national controversy, some people said that Gates was the true racist for assuming Crowley was racist. Only the parties “beer summit” with the President and Vice-president cooled the controversy. This article asks why Crowley arrested Gates and why some view Gates as the culprit. The answer to the first question is that this was not just racial profiling, but also a masculinity contest. The arrest can be conceived of as resulting from the ways the parties challenged each others’ masculinities, which resulted in a masculinity contest. Specifically, Gates’s violation of the unofficial rule of deference to the badge created a masculinity challenge for Crowley and resulted in a masculinity contest between the parties that Crowley resolved by arresting Gates. The answer to the second question is that race was indeed the dominant factor, but because of post-racialism, not traditional racism. Whereas colorblind ideology presumed the best way to reach an egalitarian society was to pretend race does not matter, post-racial ideology assumes we have reached that state. The ironic result of Obama’s election was to make it harder for the mainstream to see Crowley as implicitly biased and easier for them to see Gates as the true racist for having called Crowley racist. The complicated nature of the Gates arrest and controversy reveals the need for a scholarly program demonstrating that norms of masculinity, while invisible, strongly influence behavior and that post-racialism, while explicitly progressive, hides implicit bias from view.
{"title":"Masculinities, Post-Racialism and the Gates Controversy: The False Equivalence Between Officer and Civilian","authors":"F. Cooper","doi":"10.2139/SSRN.1576751","DOIUrl":"https://doi.org/10.2139/SSRN.1576751","url":null,"abstract":"On Thursday, July 16, 2009, white male police officer James Crowley was called to the home of prominent black male scholar Henry Louis Gates, Jr. on a report of a potential break-in. After confirming that no break-in had occurred and Gates’s identity, Crowley arrested Gates for disorderly conduct. Gates was promptly released without charges, and claimed he had been racially profiled. After the event became a national controversy, some people said that Gates was the true racist for assuming Crowley was racist. Only the parties “beer summit” with the President and Vice-president cooled the controversy. This article asks why Crowley arrested Gates and why some view Gates as the culprit. The answer to the first question is that this was not just racial profiling, but also a masculinity contest. The arrest can be conceived of as resulting from the ways the parties challenged each others’ masculinities, which resulted in a masculinity contest. Specifically, Gates’s violation of the unofficial rule of deference to the badge created a masculinity challenge for Crowley and resulted in a masculinity contest between the parties that Crowley resolved by arresting Gates. The answer to the second question is that race was indeed the dominant factor, but because of post-racialism, not traditional racism. Whereas colorblind ideology presumed the best way to reach an egalitarian society was to pretend race does not matter, post-racial ideology assumes we have reached that state. The ironic result of Obama’s election was to make it harder for the mainstream to see Crowley as implicitly biased and easier for them to see Gates as the true racist for having called Crowley racist. The complicated nature of the Gates arrest and controversy reveals the need for a scholarly program demonstrating that norms of masculinity, while invisible, strongly influence behavior and that post-racialism, while explicitly progressive, hides implicit bias from view.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116182145","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Wealthy taxpayers have always attempted to reduce their federal income taxes. Before 1948, one popular method was to shift income between spouses so that more of a husband’s income could be reported by, and taxed to, his lower-income, and thus lower tax bracket, wife. In 1948 Congress removed married couples’ incentive to engage in this tax avoidance behavior by adding nationalized income-splitting to the joint return. This effectively gave those filing joint returns tax brackets that were twice as wide as those of single taxpayers, and, as a result, married couples with a single or primary income-earner paid relatively less income tax than their single counterparts. Today there is debate over returning to an individual-based income tax system, similar to that which operated before 1948. Evaluating that proposal, this paper first explores the development of the income-splitting joint return to evaluate the potential costs and consequences of a return to an individual system. Individual-filing incentivized avoidance behavior, reducing the progressiveness of the income tax while giving tax advantages to those who engaged in tax-planning and an increased relative tax burden to those who did not. Second, the paper considers the prospect of the Internal Revenue Service reining in a renewal of this type of tax avoidance today. Returning to a system of individual filing will increase complexity in the tax code and add incentives and opportunities for tax avoidance at a time when the IRS is already struggling under the burden of non-compliance. Finally, in case practical concerns are not persuasive enough, this paper examines how best to evaluate married couples’ ability to pay taxes on a theoretical basis. Calculations on a unitary basis, it contends, remain more accurate for comparing married taxpayers to other taxpayers and it is that comparison, between couples as opposed to within couples, which reflects relative abilities to pay. As a result of these considerations, this paper concludes that joint filing remains the best filing unit.
{"title":"To Have and To Hold: What Does Love (of Money) Have to do with Joint Tax Filing?","authors":"S. Mcmahon","doi":"10.2139/SSRN.1344431","DOIUrl":"https://doi.org/10.2139/SSRN.1344431","url":null,"abstract":"Wealthy taxpayers have always attempted to reduce their federal income taxes. Before 1948, one popular method was to shift income between spouses so that more of a husband’s income could be reported by, and taxed to, his lower-income, and thus lower tax bracket, wife. In 1948 Congress removed married couples’ incentive to engage in this tax avoidance behavior by adding nationalized income-splitting to the joint return. This effectively gave those filing joint returns tax brackets that were twice as wide as those of single taxpayers, and, as a result, married couples with a single or primary income-earner paid relatively less income tax than their single counterparts. Today there is debate over returning to an individual-based income tax system, similar to that which operated before 1948. Evaluating that proposal, this paper first explores the development of the income-splitting joint return to evaluate the potential costs and consequences of a return to an individual system. Individual-filing incentivized avoidance behavior, reducing the progressiveness of the income tax while giving tax advantages to those who engaged in tax-planning and an increased relative tax burden to those who did not. Second, the paper considers the prospect of the Internal Revenue Service reining in a renewal of this type of tax avoidance today. Returning to a system of individual filing will increase complexity in the tax code and add incentives and opportunities for tax avoidance at a time when the IRS is already struggling under the burden of non-compliance. Finally, in case practical concerns are not persuasive enough, this paper examines how best to evaluate married couples’ ability to pay taxes on a theoretical basis. Calculations on a unitary basis, it contends, remain more accurate for comparing married taxpayers to other taxpayers and it is that comparison, between couples as opposed to within couples, which reflects relative abilities to pay. As a result of these considerations, this paper concludes that joint filing remains the best filing unit.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126895529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
By forcing employment and consumer cases into the mandatory arbitration system, the Supreme Court's interpretation of the Federal Arbitration Act has created inexorable pressures to judicialize arbitration, thereby tending to undermine what is valuable about arbitration as a dispute resolution process. A large and rapidly-expanding body of judicial doctrine - external arbitration law - now frames arbitration with decisional law on enforceability of arbitration clauses, arbitrability of issues, the judicial enforcement procedures for arbitrations both before and after the award, and sundry related matters. In addition, arbitration is becoming internally judicialized with formal procedures for how a case will be arbitrated, rules imposed extra-contractually, by case law, statute, professional organizations, and the arbitration providers themselves. Finally, academic commentators exacerbate this process of surrounding and infusing arbitration with formal law by focusing on increasingly specific doctrinal questions reflecting acceptance of or resignation to the mandatory arbitration regime. In other words, contemporary arbitration law is largely how courts and commentators cope with the two big mistakes underlying the Supreme Court's FAA interpretation. Believers in arbitration as a faster, simpler and cheaper alternative to litigation should support legislative reversal of judicially-created doctrine of mandatory arbitration.
{"title":"If You Love Arbitration, Set it Free: How 'Mandatory' Undermines 'Arbitration'","authors":"David S. Schwartz","doi":"10.2139/SSRN.1006826","DOIUrl":"https://doi.org/10.2139/SSRN.1006826","url":null,"abstract":"By forcing employment and consumer cases into the mandatory arbitration system, the Supreme Court's interpretation of the Federal Arbitration Act has created inexorable pressures to judicialize arbitration, thereby tending to undermine what is valuable about arbitration as a dispute resolution process. A large and rapidly-expanding body of judicial doctrine - external arbitration law - now frames arbitration with decisional law on enforceability of arbitration clauses, arbitrability of issues, the judicial enforcement procedures for arbitrations both before and after the award, and sundry related matters. In addition, arbitration is becoming internally judicialized with formal procedures for how a case will be arbitrated, rules imposed extra-contractually, by case law, statute, professional organizations, and the arbitration providers themselves. Finally, academic commentators exacerbate this process of surrounding and infusing arbitration with formal law by focusing on increasingly specific doctrinal questions reflecting acceptance of or resignation to the mandatory arbitration regime. In other words, contemporary arbitration law is largely how courts and commentators cope with the two big mistakes underlying the Supreme Court's FAA interpretation. Believers in arbitration as a faster, simpler and cheaper alternative to litigation should support legislative reversal of judicially-created doctrine of mandatory arbitration.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"166 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115293680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-08-24DOI: 10.4324/9781315248592-13
Carrie Menkel‐Meadow
This article explores the possible marriage of recent political theory on deliberative democracy with conflict resolution theory and practice. It reviews the theoretical framework for encouraging more active public participation in both governmental and political decision making (Guttman & Thompson, Bohman, Habermas, Hampshire) and asks how processes can be structured to maximize political participation through several different modes of discourse: reasoned argument/principle; trading of preferences/bargaining and appeals to passion, emotion, and deeply held beliefs. The article suggests a variety of different modes of conflict resolution sorted by the need for constitutive, permanent or ad hoc decision-making, plenary vs. committee or task oriented organizational principles and whether deliberations are to be private and confidential or transparent and public, with predictions about how different outcomes will be produced by different process structures. In addition, the article suggests that lawyers might be particularly well suited (with additional disciplinary training) to performing Tocquevillian facilitative roles between and among deliberators in processes that seek to increase participative democracy and improve the quality of decision making.
{"title":"The Lawyer's Role(s) in Deliberative Democracy","authors":"Carrie Menkel‐Meadow","doi":"10.4324/9781315248592-13","DOIUrl":"https://doi.org/10.4324/9781315248592-13","url":null,"abstract":"This article explores the possible marriage of recent political theory on deliberative democracy with conflict resolution theory and practice. It reviews the theoretical framework for encouraging more active public participation in both governmental and political decision making (Guttman & Thompson, Bohman, Habermas, Hampshire) and asks how processes can be structured to maximize political participation through several different modes of discourse: reasoned argument/principle; trading of preferences/bargaining and appeals to passion, emotion, and deeply held beliefs. The article suggests a variety of different modes of conflict resolution sorted by the need for constitutive, permanent or ad hoc decision-making, plenary vs. committee or task oriented organizational principles and whether deliberations are to be private and confidential or transparent and public, with predictions about how different outcomes will be produced by different process structures. In addition, the article suggests that lawyers might be particularly well suited (with additional disciplinary training) to performing Tocquevillian facilitative roles between and among deliberators in processes that seek to increase participative democracy and improve the quality of decision making.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127870938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How should disputes be allocated between litigation and arbitration? Given strong incentives for many actors to arbitrate everything, the question turns fundamentally on the scope of arbitration under the applicable law. In Re-Inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication, Professor Deborah Hensler and Damira Khatam posit that the “public” or “private” nature of a dispute provides the key to whether it belongs in arbitration. While arbitration of private disputes is ok, disputes with “public policy dimensions” belong in the courts. Hensler and Khatam therefore suggest that Congress override Supreme Court decisions mandating arbitration of employment and consumer disputes, which, they contend, would restore domestic arbitration to its proper sphere. But can disputes really be divided into public and private categories that provide the key to whether they belong in arbitration? This Response suggests that on close examination it is exceedingly difficult to identify a reliable proxy for the public or private nature of a dispute. The absence of such a proxy suggests there is an inescapably political dimension to how disputes are allocated between litigation and arbitration. Whether a category of disputes should be heard in a public court because the disputes impact the public interest turns out to depend on contested judgments about where the public interest lies. This, in turn, suggests a more fundamental reason for Congress to revisit the scope of arbitration under the FAA. If the allocation of disputes between litigation and arbitration is an inescapably political question, it should ideally be addressed by an institution accountable to democratic politics.
{"title":"Response: Public Litigation, Private Arbitration?","authors":"David L. Noll","doi":"10.7282/T3MS3X1C","DOIUrl":"https://doi.org/10.7282/T3MS3X1C","url":null,"abstract":"How should disputes be allocated between litigation and arbitration? Given strong incentives for many actors to arbitrate everything, the question turns fundamentally on the scope of arbitration under the applicable law. In Re-Inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication, Professor Deborah Hensler and Damira Khatam posit that the “public” or “private” nature of a dispute provides the key to whether it belongs in arbitration. While arbitration of private disputes is ok, disputes with “public policy dimensions” belong in the courts. Hensler and Khatam therefore suggest that Congress override Supreme Court decisions mandating arbitration of employment and consumer disputes, which, they contend, would restore domestic arbitration to its proper sphere. But can disputes really be divided into public and private categories that provide the key to whether they belong in arbitration? This Response suggests that on close examination it is exceedingly difficult to identify a reliable proxy for the public or private nature of a dispute. The absence of such a proxy suggests there is an inescapably political dimension to how disputes are allocated between litigation and arbitration. Whether a category of disputes should be heard in a public court because the disputes impact the public interest turns out to depend on contested judgments about where the public interest lies. This, in turn, suggests a more fundamental reason for Congress to revisit the scope of arbitration under the FAA. If the allocation of disputes between litigation and arbitration is an inescapably political question, it should ideally be addressed by an institution accountable to democratic politics.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130127011","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court decided in University of Texas Southwestern Medical Center v. Nassar that the “a motivating factor” level of proof to establish liability set forth in §§ 703(m) and the same-decision defense to full remedies of 706(g)(2)(B) of Title VII of the Civil Rights Act of 1964 does not apply to claims of retaliation brought pursuant to § 704(a). Instead, Title VII retaliation must be the “but-for” cause of the adverse action plaintiff challenges. The obvious impact of Nassar is that it makes it more difficult for plaintiffs to prove retaliation. In some ways, Nassar is a surprise because the Court had consistently held for plaintiffs in a number of retaliation cases. In other ways, it was not a surprise that the Court would move its retaliation jurisprudence more in line with its recent pro-employer, anti-civil rights interpretation of statutes typified by its decision in Gross v. FBL Financial, Inc. To reach its desired decision, the Court had to forego the plain meaning approach to statutory interpretation that in Gross it said was to be used. The Court reached its conclusion by hiding the terms and the structure of Title VII in plain sight while replacing the actual terms of the statute with terms of its own creation. Further, the majority of the Court was captivated by a hypothetical presented by counsel for the employer of employees gaming retaliation law, a fact pattern that does not appear to have happened in any reported case, with that captivation indicative of the majority’s perspective favoring employers over employees in its recent antidiscrimination decisions.
最高法院在德克萨斯大学西南医学中心诉纳萨尔案中裁定，第703(m)条规定的确立责任的“激励因素”证明水平，以及对《1964年民权法案》第七章第706(g)(2)(B)条完全救济的相同判决辩护，不适用于根据第704(a)条提起的报复索赔。相反，第七章的报复必须是原告反对的不利行动的“除非”原因。纳萨尔事件的明显影响是，它使原告更难以证明报复行为。在某些方面，纳萨尔的判决令人意外，因为最高法院在一些报复案件中一贯支持原告。在其他方面，法院将其报复法理与最近在格罗斯诉联邦调查局金融公司案(Gross v. FBL Financial, Inc.)中对法律的亲雇主、反民权解释更加一致也就不足为奇了。为了达成它所期望的决定，法院必须放弃它在格罗斯案中说要使用的法定解释的简单含义方法。最高法院的结论是将第七章的条款和结构隐藏在显而易见的地方，而用自己创造的条款取代规约的实际条款。此外，法院多数人被雇员雇主的律师提出的假设所迷惑，这种事实模式似乎在任何报告的案件中都没有发生，这种迷惑表明，在最近的反歧视决定中，多数人的观点更倾向于雇主而不是雇员。
{"title":"Hiding the Statute in Plain View: University of Texas Southwestern Medical Center v. Nassar","authors":"M. J. Zimmer","doi":"10.2139/SSRN.2341828","DOIUrl":"https://doi.org/10.2139/SSRN.2341828","url":null,"abstract":"The Supreme Court decided in University of Texas Southwestern Medical Center v. Nassar that the “a motivating factor” level of proof to establish liability set forth in §§ 703(m) and the same-decision defense to full remedies of 706(g)(2)(B) of Title VII of the Civil Rights Act of 1964 does not apply to claims of retaliation brought pursuant to § 704(a). Instead, Title VII retaliation must be the “but-for” cause of the adverse action plaintiff challenges. The obvious impact of Nassar is that it makes it more difficult for plaintiffs to prove retaliation. In some ways, Nassar is a surprise because the Court had consistently held for plaintiffs in a number of retaliation cases. In other ways, it was not a surprise that the Court would move its retaliation jurisprudence more in line with its recent pro-employer, anti-civil rights interpretation of statutes typified by its decision in Gross v. FBL Financial, Inc. To reach its desired decision, the Court had to forego the plain meaning approach to statutory interpretation that in Gross it said was to be used. The Court reached its conclusion by hiding the terms and the structure of Title VII in plain sight while replacing the actual terms of the statute with terms of its own creation. Further, the majority of the Court was captivated by a hypothetical presented by counsel for the employer of employees gaming retaliation law, a fact pattern that does not appear to have happened in any reported case, with that captivation indicative of the majority’s perspective favoring employers over employees in its recent antidiscrimination decisions.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128692556","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although long a component of international women’s human rights platforms, forced marriage is only presently gaining attention as a critical problem in the United States. In recent years, a number of states have considered legislation to redress forced and child marriage, most by increasing the minimum age to marry and/or mandating judicial approval of marriages involving minors. Although civil marriage reform is important, it alone is insufficient to combat forced marriage. Even where civil marriage is limited to adults, minors remain vulnerable to forced customary, religious, common law marriages, and marriages consecrated abroad. Further, intended spouses of all ages remain vulnerable to conduct intended to coerce their consent to marry. To prevent and redress forced marriage, potential victims need ready access to emergency civil injunc- tive relief. Civil protection orders are the central civil injunctive remedy relied upon to address intimate partner violence, rape, and stalking in the United States. The expedited and flexible remedies of civil protection orders could also help combat forced marriages; however, common legal standards create barriers to relief for those vulnerable to forced marriage. This Article is the first to undertake a detailed evaluation of the viability of civil protection orders to prevent and redress forced marriage. Although protection orders show promise as a tool to prevent and redress forced marriage in many states, the nuances of the governing legal standards reduce the practical utility of the remedy for those who lack expert guidance. To enhance the accessibility of protection orders in the context of forced marriage, this article proposes that states create a new forced marriage protection order like that established in the United Kingdom to address the specific needs of those facing this problem.
{"title":"Restraining Forced Marriage","authors":"L. Martin","doi":"10.2139/SSRN.2962589","DOIUrl":"https://doi.org/10.2139/SSRN.2962589","url":null,"abstract":"Although long a component of international women’s human rights platforms, forced marriage is only presently gaining attention as a critical problem in the United States. In recent years, a number of states have considered legislation to redress forced and child marriage, most by increasing the minimum age to marry and/or mandating judicial approval of marriages involving minors. Although civil marriage reform is important, it alone is insufficient to combat forced marriage. Even where civil marriage is limited to adults, minors remain vulnerable to forced customary, religious, common law marriages, and marriages consecrated abroad. Further, intended spouses of all ages remain vulnerable to conduct intended to coerce their consent to marry. To prevent and redress forced marriage, potential victims need ready access to emergency civil injunc- tive relief. Civil protection orders are the central civil injunctive remedy relied upon to address intimate partner violence, rape, and stalking in the United States. The expedited and flexible remedies of civil protection orders could also help combat forced marriages; however, common legal standards create barriers to relief for those vulnerable to forced marriage. This Article is the first to undertake a detailed evaluation of the viability of civil protection orders to prevent and redress forced marriage. Although protection orders show promise as a tool to prevent and redress forced marriage in many states, the nuances of the governing legal standards reduce the practical utility of the remedy for those who lack expert guidance. To enhance the accessibility of protection orders in the context of forced marriage, this article proposes that states create a new forced marriage protection order like that established in the United Kingdom to address the specific needs of those facing this problem.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128286240","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Landslides occur in all 50 states and cause approximately $3.5 billion in property damage annually. Yet, in America, “all risk” homeowners and commercial property insurance policies exclude coverage for landslides, and there is only limited availability of expensive, stand-alone “named peril” insurance policies that cover landslide losses. Consequently, the affected homeowners are often left financially devastated -- homeless with a mortgage to pay on an unsaleable piece of property. This Article analyzes the problem of insuring landslide losses in America and proposes ways to help solve it. It describes both historical and recent landslide events. It discusses the insurance industry’s response to the problem of insuring landslides, including the theoretical justifications insurers historically have used to successfully exclude coverage for landslides -- adverse selection, moral hazard and correlated risks. It also considers how other countries such as Belgium, France, New Zealand, Norway, Romania, Switzerland, Iceland and Australia address the issue of insuring landslide losses. It concludes by offering two ways to transform the insurance market for landslide losses in America.
{"title":"Insuring Landslides: America’s Uninsured Natural Catastrophes","authors":"Christopher C. French","doi":"10.2139/SSRN.2566238","DOIUrl":"https://doi.org/10.2139/SSRN.2566238","url":null,"abstract":"Landslides occur in all 50 states and cause approximately $3.5 billion in property damage annually. Yet, in America, “all risk” homeowners and commercial property insurance policies exclude coverage for landslides, and there is only limited availability of expensive, stand-alone “named peril” insurance policies that cover landslide losses. Consequently, the affected homeowners are often left financially devastated -- homeless with a mortgage to pay on an unsaleable piece of property. This Article analyzes the problem of insuring landslide losses in America and proposes ways to help solve it. It describes both historical and recent landslide events. It discusses the insurance industry’s response to the problem of insuring landslides, including the theoretical justifications insurers historically have used to successfully exclude coverage for landslides -- adverse selection, moral hazard and correlated risks. It also considers how other countries such as Belgium, France, New Zealand, Norway, Romania, Switzerland, Iceland and Australia address the issue of insuring landslide losses. It concludes by offering two ways to transform the insurance market for landslide losses in America.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125338681","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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