Pub Date : 2014-12-11DOI: 10.1093/acprof:oso/9780190278380.003.0008
Sandra F. Sperino, Suja A. Thomas
There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information suggests the opposite conclusion. Third, a change to the substantive law will not prevent spurious claims. Fourth, the fakers and floodgates arguments could become accepted and embedded in judicial doctrine. Finally, it shows that Nassar is symptomatic of the broader issue that courts use procedure and substance to impede factually intensive civil rights claims.
{"title":"Fakers and Floodgates","authors":"Sandra F. Sperino, Suja A. Thomas","doi":"10.1093/acprof:oso/9780190278380.003.0008","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780190278380.003.0008","url":null,"abstract":"There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information suggests the opposite conclusion. Third, a change to the substantive law will not prevent spurious claims. Fourth, the fakers and floodgates arguments could become accepted and embedded in judicial doctrine. Finally, it shows that Nassar is symptomatic of the broader issue that courts use procedure and substance to impede factually intensive civil rights claims.","PeriodicalId":348264,"journal":{"name":"Stanford Journal of Civil Rights and Civil Liberties","volume":"202 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132150346","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 Federal Rules of Civil Procedure no longer govern all non-substantive decisions in federal civil litigation. Rather, control over a case’s procedural course has shifted to district courts’ local rules, of which there are currently more than 6,000. Despite the proliferation of local rules and their increasing importance, federal procedural scholarship remains focused on the Federal Rules. That scholarship is rigorous, highlighting the Federal Rules’ history and purpose, and proposing ways that the Rules might adapt to the evolving nature of federal litigation. Local rules should be subject to similar scrutiny. However, it is not enough to borrow theories applied to the Federal Rules. A new approach is needed. Scrutiny of local rules must first consider how they are created. Though Federal Rules are amended through a process that requires public comment and debate, local rules are adopted or amended through a process that does not automatically give notice of impending changes to affected parties, nor does it provide all affected parties with a meaningful way to comment. Applying this new approach and its focus on meaningful notice and comment, the Article compares local patent rules to local rules governing pro se prisoner litigation, arguing that when parties are not allowed to participate in the local rule adoption and amendment process, the rules that result are procedurally and substantively unfair. Finally, it proposes how District Courts can ensure that all parties potentially affected by proposed local rules receive actual notice and a real opportunity to comment.
{"title":"A New Approach to Local Rules","authors":"Katherine Macfarlane","doi":"10.2139/SSRN.2459601","DOIUrl":"https://doi.org/10.2139/SSRN.2459601","url":null,"abstract":"The Federal Rules of Civil Procedure no longer govern all non-substantive decisions in federal civil litigation. Rather, control over a case’s procedural course has shifted to district courts’ local rules, of which there are currently more than 6,000. Despite the proliferation of local rules and their increasing importance, federal procedural scholarship remains focused on the Federal Rules. That scholarship is rigorous, highlighting the Federal Rules’ history and purpose, and proposing ways that the Rules might adapt to the evolving nature of federal litigation. Local rules should be subject to similar scrutiny. However, it is not enough to borrow theories applied to the Federal Rules. A new approach is needed. Scrutiny of local rules must first consider how they are created. Though Federal Rules are amended through a process that requires public comment and debate, local rules are adopted or amended through a process that does not automatically give notice of impending changes to affected parties, nor does it provide all affected parties with a meaningful way to comment. Applying this new approach and its focus on meaningful notice and comment, the Article compares local patent rules to local rules governing pro se prisoner litigation, arguing that when parties are not allowed to participate in the local rule adoption and amendment process, the rules that result are procedurally and substantively unfair. Finally, it proposes how District Courts can ensure that all parties potentially affected by proposed local rules receive actual notice and a real opportunity to comment.","PeriodicalId":348264,"journal":{"name":"Stanford Journal of Civil Rights and Civil Liberties","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127940955","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}
Congress passed the Civil Rights Act of 1964 after nearly 90 years in which it enacted no major civil rights legislation. The 1964 Act stood out then - as it stands out now - as Congress acting at its best rather than its worst. It confronted the historic problem of race in America, it overcame partisan divisions and sectional obstruction, and it acted to enforce constitutional principles. This is not to say that sponsors of the legislation made no compromises in the 1964 Act. On the contrary, they had to do so, particularly in the Senate, to obtain the two-thirds majority then needed to close off debate and end a filibuster. The resulting legislation, compromises and all, then became the foundation for all employment discrimination law, providing the template for prohibitions against discrimination on the basis of age and disability. Even more remarkably, the legislation was consistently extended and reinforced, often over the narrowing interpretations imposed by the Supreme Court. Long after the Civil Rights Era had ended, Congress continued to pass expansive and progressive legislation, with virtually no examples to the contrary. The few restrictive or qualifying provisions that Congress enacted invariably came as compromises, like those in the 1964 Act, added in order to pass expanded prohibitions against discrimination. This article recounts this pattern of legislation, the role that Title VII played in it, and possible explanations for it. These explanations, like those for passage of the 1964 Act, extend over a wide range: from the simple selection effect of noticing only the statutes that are passed rather than those that fail, to an unholy alliance between plaintiffs’ lawyers and big business, to the moral and ideological force of the principle against discrimination.
{"title":"Title VII as Precedent: Past and Prologue for Future Legislation","authors":"G. Rutherglen","doi":"10.2139/SSRN.2394617","DOIUrl":"https://doi.org/10.2139/SSRN.2394617","url":null,"abstract":"Congress passed the Civil Rights Act of 1964 after nearly 90 years in which it enacted no major civil rights legislation. The 1964 Act stood out then - as it stands out now - as Congress acting at its best rather than its worst. It confronted the historic problem of race in America, it overcame partisan divisions and sectional obstruction, and it acted to enforce constitutional principles. This is not to say that sponsors of the legislation made no compromises in the 1964 Act. On the contrary, they had to do so, particularly in the Senate, to obtain the two-thirds majority then needed to close off debate and end a filibuster. The resulting legislation, compromises and all, then became the foundation for all employment discrimination law, providing the template for prohibitions against discrimination on the basis of age and disability. Even more remarkably, the legislation was consistently extended and reinforced, often over the narrowing interpretations imposed by the Supreme Court. Long after the Civil Rights Era had ended, Congress continued to pass expansive and progressive legislation, with virtually no examples to the contrary. The few restrictive or qualifying provisions that Congress enacted invariably came as compromises, like those in the 1964 Act, added in order to pass expanded prohibitions against discrimination. This article recounts this pattern of legislation, the role that Title VII played in it, and possible explanations for it. These explanations, like those for passage of the 1964 Act, extend over a wide range: from the simple selection effect of noticing only the statutes that are passed rather than those that fail, to an unholy alliance between plaintiffs’ lawyers and big business, to the moral and ideological force of the principle against discrimination.","PeriodicalId":348264,"journal":{"name":"Stanford Journal of Civil Rights and Civil Liberties","volume":"333 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123335616","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 DNA exoneration data stemming from the Innocence Movement exposes a harsh reality in our criminal justice system: existing post-conviction review procedures fail to accurately identify and remedy wrongful convictions of the innocent. While the layers of review available upon conviction are seemingly exhaustive, in fact, the factually innocent prisoner is confronted with little more than a facade of protection. At the federal habeas stage, several provisions of the Anti-Terrorism and Effective Death Penalty Act [AEDPA] operate to foreclose viable claims of innocence. Further, the federal courts entertain second or successive habeas petitions in a piecemeal fashion, if they do so at all. This “piecemeal approach” negatively impacts prisoners raising claims of factual innocence, in light of their typically pro se status and incarceration. In reviewing each successive habeas petition in isolation, without regard to previous claims, the courts often miss the forest for the trees, allowing innocent prisoners to remain in custody.This Article discusses the piecemeal problem inherent in federal habeas review procedures, provides a case illustration, and advocates for a broader reading of the “evidence as a whole” language in AEDPA’s 28 U.S.C. Section 2244(b)(2). This broader interpretation, already adopted by the Fourth Circuit, would allow courts to review a petitioner’s successive habeas claims in the aggregate, and thus, more readily identify cognizable claims of factual innocence. This Article contributes to the ongoing debate as to how the competing post-conviction interests of finality and fairness should be recalibrated in light of the DNA exoneration data brought forth by the Innocence Movement.
{"title":"Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases","authors":"S. R. Hartung","doi":"10.2139/SSRN.2306202","DOIUrl":"https://doi.org/10.2139/SSRN.2306202","url":null,"abstract":"The DNA exoneration data stemming from the Innocence Movement exposes a harsh reality in our criminal justice system: existing post-conviction review procedures fail to accurately identify and remedy wrongful convictions of the innocent. While the layers of review available upon conviction are seemingly exhaustive, in fact, the factually innocent prisoner is confronted with little more than a facade of protection. At the federal habeas stage, several provisions of the Anti-Terrorism and Effective Death Penalty Act [AEDPA] operate to foreclose viable claims of innocence. Further, the federal courts entertain second or successive habeas petitions in a piecemeal fashion, if they do so at all. This “piecemeal approach” negatively impacts prisoners raising claims of factual innocence, in light of their typically pro se status and incarceration. In reviewing each successive habeas petition in isolation, without regard to previous claims, the courts often miss the forest for the trees, allowing innocent prisoners to remain in custody.This Article discusses the piecemeal problem inherent in federal habeas review procedures, provides a case illustration, and advocates for a broader reading of the “evidence as a whole” language in AEDPA’s 28 U.S.C. Section 2244(b)(2). This broader interpretation, already adopted by the Fourth Circuit, would allow courts to review a petitioner’s successive habeas claims in the aggregate, and thus, more readily identify cognizable claims of factual innocence. This Article contributes to the ongoing debate as to how the competing post-conviction interests of finality and fairness should be recalibrated in light of the DNA exoneration data brought forth by the Innocence Movement.","PeriodicalId":348264,"journal":{"name":"Stanford Journal of Civil Rights and Civil Liberties","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128069326","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}
California's prison system is operating at 194% capacity and is in drastic need of reform. With the failure of the executive and legislative branches to ameliorate the growing problems, California's judges have taken action and mandated sweeping reforms through their judicial decisions. This paper seeks to explore why California's judges continue to take on this role of activism. First, the major cases that have impacted the adult prison system from 1995-2005 are reviewed. Next, the paper explores national trends to determine whether or not California is an anomaly. Based on a review of the Prison Litigation Reform Act of 1996's impact on prisoner litigation and the judicial trends in New York, Florida, and Texas, the conclusion is that California is, in fact, an anomaly. Accordingly, the paper identifies three factors as the most significant drivers of California's judicial activism: the existence of the Prison Law Office; the personal influence of Judge Thelton E. Henderson; and California's unique political climate. Finally, this paper concludes by identifying the policy implications of a judiciary-dependent path towards prison reform.
加州监狱系统的利用率达到了194%，急需改革。由于行政和立法部门未能改善日益严重的问题，加州的法官已经采取行动，并通过他们的司法裁决强制进行全面改革。本文试图探讨为什么加州的法官继续承担这种行动主义的角色。首先，回顾了1995-2005年间影响成人监狱系统的重大案件。接下来，本文探讨了全国趋势，以确定加州是否是一个特例。通过对1996年《监狱诉讼改革法案》对囚犯诉讼的影响以及纽约州、佛罗里达州和德克萨斯州的司法趋势的回顾，我们得出的结论是，加州实际上是一个特例。因此，本文确定了三个因素是加州司法能动主义最重要的驱动因素:监狱法律办公室的存在;Thelton E. Henderson法官的个人影响;以及加州独特的政治气候。最后，本文通过确定依赖司法的监狱改革道路的政策含义来结束。
{"title":"Legislating from the Bench: Judicial Activism in California and its Increasing Impact on Adult Prison Reform","authors":"Chantale Fiebig","doi":"10.2139/SSRN.977245","DOIUrl":"https://doi.org/10.2139/SSRN.977245","url":null,"abstract":"California's prison system is operating at 194% capacity and is in drastic need of reform. With the failure of the executive and legislative branches to ameliorate the growing problems, California's judges have taken action and mandated sweeping reforms through their judicial decisions. This paper seeks to explore why California's judges continue to take on this role of activism. First, the major cases that have impacted the adult prison system from 1995-2005 are reviewed. Next, the paper explores national trends to determine whether or not California is an anomaly. Based on a review of the Prison Litigation Reform Act of 1996's impact on prisoner litigation and the judicial trends in New York, Florida, and Texas, the conclusion is that California is, in fact, an anomaly. Accordingly, the paper identifies three factors as the most significant drivers of California's judicial activism: the existence of the Prison Law Office; the personal influence of Judge Thelton E. Henderson; and California's unique political climate. Finally, this paper concludes by identifying the policy implications of a judiciary-dependent path towards prison reform.","PeriodicalId":348264,"journal":{"name":"Stanford Journal of Civil Rights and Civil Liberties","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129292748","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}
Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence articulates principles for an approach to gender-based violence during conflict and post-conflict that operates within three different meanings of justice: criminal/civil justice, restorative justice, and what I define as social services justice. The article argues that responses to sexual violence must integrate legal and nonlegal, national, international, and local approaches, and must respond to both short and longer-term needs. It focuses on victims of sexual violence in the Democratic Republic of the Congo during what has been called the First World War in Africa, which occurred from 1996-2003. Joseph Conrad famously wrote about The Heart of Darkness more than a century ago. Today, the Congo is emerging from a devastating war which involved neighboring countries, including Rwanda, Burundi, Uganda, and Angola. As the Congo undergoes a transition to a democracy, it must grapple with its response to the hundreds of thousands of victims of sexual violence who are still wounded - in so many ways - as a result of the conflict. By focusing on the actual victims of violence, this article articulates a new vision of social services justice. Social services justice adds another dimension to the criminal/civil justice system and to restorative justice (remedies such as reparations and mediation) by focusing on the social, economical, medical, and psychological components of providing justice to victims and moving beyond the two-dimension focus on perpetrator/victim. This new vision of justice is applicable to countries beyond the Congo and to victims of any type of conflict-based violence. This article discusses the contemporary Congolese conflict, providing the context for the sexual violence that has occurred during the war. Next, the article provides a fuller development of the principles that should guide any response to the sexual violence, surveying the possible approaches. Finally, the article provides specific recommendations for a victim-centered approach that reflects and respects community concerns and interests and that also ensures responsibility for perpetrators.
{"title":"Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence","authors":"Naomi R. Cahn","doi":"10.2139/SSRN.586123","DOIUrl":"https://doi.org/10.2139/SSRN.586123","url":null,"abstract":"Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence articulates principles for an approach to gender-based violence during conflict and post-conflict that operates within three different meanings of justice: criminal/civil justice, restorative justice, and what I define as social services justice. The article argues that responses to sexual violence must integrate legal and nonlegal, national, international, and local approaches, and must respond to both short and longer-term needs. It focuses on victims of sexual violence in the Democratic Republic of the Congo during what has been called the First World War in Africa, which occurred from 1996-2003. Joseph Conrad famously wrote about The Heart of Darkness more than a century ago. Today, the Congo is emerging from a devastating war which involved neighboring countries, including Rwanda, Burundi, Uganda, and Angola. As the Congo undergoes a transition to a democracy, it must grapple with its response to the hundreds of thousands of victims of sexual violence who are still wounded - in so many ways - as a result of the conflict. By focusing on the actual victims of violence, this article articulates a new vision of social services justice. Social services justice adds another dimension to the criminal/civil justice system and to restorative justice (remedies such as reparations and mediation) by focusing on the social, economical, medical, and psychological components of providing justice to victims and moving beyond the two-dimension focus on perpetrator/victim. This new vision of justice is applicable to countries beyond the Congo and to victims of any type of conflict-based violence. This article discusses the contemporary Congolese conflict, providing the context for the sexual violence that has occurred during the war. Next, the article provides a fuller development of the principles that should guide any response to the sexual violence, surveying the possible approaches. Finally, the article provides specific recommendations for a victim-centered approach that reflects and respects community concerns and interests and that also ensures responsibility for perpetrators.","PeriodicalId":348264,"journal":{"name":"Stanford Journal of Civil Rights and Civil Liberties","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127080406","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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