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Abstract:
Work is central to American life and drives us in fundamental ways. And the workplace, as a result, dominates our lives. We are spending ever greater amounts of time in the workplace and less time in civic and social engagements. As a consequence, our relationships at work have become so significant that they are nearly as important to us as our family relationships. In fact, the employment relationship is similar to the family relationship in the emotional support from coworkers it can provide and in the financial support it provides. Because the employment relationship is so common and psychologically so important to us, employment disputes are especially difficult and sensitive for both employers and employees. Moreover, disruptions in employment wreak real financial havoc in people's lives and can significantly disrupt the operations of a business as well. Given these factors, trials, with their delays, uncertainties, and expenses look less attractive as a method dispute resolution than they otherwise might. From the perspective of the courts, the potential caseload posed by employment disputes also makes trials an unattractive choice for resolution. Accordingly, alternative forms of dispute resolution (ADR) play a dominant role in resolving and avoiding labor and employment conflicts.

This paper, building on the comparison of the employment relationship to the family relationship, focuses on one newer form of ADR, the collaborative law process, and explores its application in the employment context. Collaborative law, as the name implies, is not adversarial and has been used in family law where continuing relationships are an important outcome of the resolution process. Part two of this paper outlines the various forms of ADR, part three details the specific features of the collaborative law process, and part four suggests some possibilities and limitations of using that process in the employment setting. Although collaborative law will probably not transform labor and employment conflicts the way it has some family law matters, there is, nonetheless, significant value to be gained by adapting it.

ADR, alternative dispute resolution, dispute resolution, conflict management, collaborative, collaborative law process, employment law, employment dispute, interest-based negotiation, negotiation, positional negotiation

Abstract:
The Constitution is designed to protect individual liberty and equality by diffusing power among the three branches of the federal government and between the federal and state governments, and by providing a minimum level of protection for individual rights. Yet, the Supreme Court seems to think that federalism is about protecting states as states rather than balancing governmental power to protect individuals. In the name of federalism, the Supreme Court has been paring away at Congress' power to enact civil rights legislation. In doing so, it has transformed the Fourteenth Amendment into a vehicle for protecting states rights rather than a vehicle for protecting individual rights. This paper analyzes this process and the institutional competence and separation of powers problems that have resulted. It proposes that the Court give effect to Congress' powers to deter potential constitutional violations by states under the Fourteenth Amendment and to keep in mind that federalism's purpose should be to maximize equality and liberty.

Federalism, civil rights, legislation, separation of powers, Congress, Supreme Court, Fourteenth Amendment, Eleventh Amendment, individual rights, equality, liberty, national citizenship, employment discrimination, sovereign immunity, states' rights

Abstract:
This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates the limits of American legal structures to effectuate social change. The broader project will be to contrast this history with the gay and lesbian rights movement, which has followed a less legalistic strategy and has arguably had greater success.

Based on this historical evidence, I argue that the greater the power of the legal structure used, the less likely the result will produce substantive change, because high-level legal structures are constrained by the dominant culture. Without some cultural change, lawmaking through courts is not effective and can perpetuate oppression instead. Legislation can be more effective, but is subject to similar limits of culture in its enactment, interpretation, and enforcement. Paradoxically, the broader the legislation in terms of subject matter and the higher the jurisdiction enacting the legislation, the less effective it will be.

Because of these paradoxes of power, The temptation to focus on the most powerful institution, which can offer the staunchest protection and the broadest sweep, in the United States, the Supreme Court and the Constitution, often wins out. This paper seeks to reveal the tradeoff that decision makes.

freedom, equality, rights, civil rights, litigation, legislation, cognitive bias, culture, substantive equality, constitution, courts, rights movements, social movements, African-American, Black, Women, gay and lesbian

Abstract:
Employment discrimination laws in the United States have not created full equality in the workplace, although that was their goal. Real change requires greater accountability for those who make employment decisions and greater transparency to bolster that accountability. To provide that transparency and accountability, we need greater federal involvement in enforcement and a mechanism to publicize the state of the nation's workplaces. To accomplish this, I propose taking private sector employment discrimination disputes away from the Equal Employment Opportunity Commission entirely, and starting with a new agency. The current model, with the EEOC writing compliance guidelines, encouraging mediation, and acting as prosecutor occasionally, is not working. Instead, we need an agency to investigate broadly, issue fact-finding about the state of the nation's workplaces, adjudicate discrimination claims, and promote good practices and voluntary compliance, through something of a hybrid between a truth commission, legislative hearing, and adjudicative agency.

Discrimination, employment discrimination, administrative law, eeoc, civil rights, enforcement, administrative agency, adr, adjudication

Abstract:
The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it does little to support the legitimacy of the federal courts. Recent Supreme Court cases reveal that the Court has begun to defer to state legislatures at the expense of the state judiciary, mimicking the federal separation of powers arrangements for federal issues. This is the first paper to systematically analyze that phenomenon. When the federal courts defer to a particular branch of state government at the expense of another branch, they risk infringing very seriously on state sovereignty. The power of the federal courts to review acts of Congress is a constitutional power. Similarly, the power of state courts to review acts of state legislatures is a matter of state constitutional power. Not deferring runs the risk of dictating what state constitutional law should be. And that result could nullify the power of the people within the states to define their government and to define their individual rights in a way more generous than that of the federal constitution. Thus, the practice of the Supreme Court conflicts with its notions of dual sovereignty. While dual sovereignty might be neither truly possible nor desirable in the age of the administrative state, it can provide some practical boundaries to divide the labor of the courts in our federal system when they necessarily interact. Thus, this article has suggested that the federal courts defer to state court analyses unless the state analysis frustrates a federal issue of substance, like an individual right, or a power explicitly granted in the federal constitution to another branch of state government.

federalism, judicial federalism, state sovereignty, state separation of powers, supreme court, federal courts, individual rights, supremacy, dual federalism

Abstract:
In this article, I hope to contribute to the ongoing debate on how our society treats the problem of discrimination. Many scholars have criticized the types of antidiscrimination statutes we have enacted as well as the ways in which the courts have interpreted those laws. While I agree with many of these critiques, rather than tackle those very large issues at the outset, I focus on the test the courts currently use to evaluate the evidence to determine whether an inference can be made that discrimination has occurred. I argue that lawyers and courts have become so caught up in this evidentiary test that the test has redefined what discrimination is. The new definition bears little relation to the statutory language of the antidiscrimination laws or to the ways in which discrimination operates in our society. Therefore, I argue, we should discard it in favor of a vastly more simple test that asks at summary judgment simply whether a rational factfinder would be required to find that the challenged employment decision was taken only for reasons unrelated to discrimination or discriminatory beliefs.

I draw on civil rights history to trace the development of our legal approach, psychological research on cognitive bias to discuss how we discriminate, and traditional legal analysis to demonstrate how far afield we have gotten from the original principles. I hope that my analysis will contribute to a more straightforward approach to evaluating evidence in discrimination cases, which will make it easier for both plaintiffs and defendants to present their cases. Additionally, it will offer the parties an opportunity to present evidence and to argue about how discrimination should be defined. This opportunity would allow judges and members of the public to better understand the complex ways in which discrimination continues to operate in our society. It will also promote debate on a subject that has remained hidden because the evidentiary test does not address it. As long as that issue remains hidden in discrimination cases, judges and juries can employ their own definitions, which will forever escape public scrutiny.

Discrimination, employment, summary judgment, burden shifting, evidence, McDonnell Douglas, taxonomy