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Abstract:
This article justifies a reformulation of modern contract damage rules articulated in a new restatement of contract damages, see Barnes and Zalesne, The Shadow Code, 56 SOUTH CAROLINA L. REV. 93 (2004). The unifying principles of the surplus-based approach offered here lies in the shadows of contract remedies as articulated in Article 2 of the Uniform Commercial Code (U.C.C.), the Restatement (Second) of Contracts. The Shadow Code presented in this Article combines these principles and formulas into a new image of legal remedies for contract breach. This reconceptualization is based on the foundational principle that parties injured by contract breach are entitled to any surplus of benefits over costs those parties would have realized had the breaching parties performed. The Shadow Code reflects the modern understanding that damages are intended to ensure that the injured party is as well off as if the other party had performed as promised.

contract law, remedies, contract damages, Uniform Commercial code, Restatement of Contracts, contract breach

Abstract:
This article deals with the effect of sexual harassment legislation on social change. The Article considers the development of sexual harassment law over the past several decades in the United States and the resulting backlash from that law, and then examines whether South Africa has and will experience a similar pattern of behavior in light of its unique social context. Using the American and South African experiences as a guide, the Article suggests ways to facilitate the transition from legal reform to actual change in social behavior, both for nations that will soon start along the path to outlawing harassment, and for nations that have recently done so.

In the United States five recent Supreme Court decisions about sexual harassment, as well as the extensive media coverage of those decisions, have heightened awareness of the problem, and large jury awards against American employers have scared companies into improving their policies and practices. In South Africa the 1998 Employment Equity Act - groundbreaking federal legislation prohibiting sexual harassment - comprehensively and ambitiously defines sexual harassment, recognizes its severity, and provides detailed procedures to deal with the problem and to prevent its recurrence. But in both countries progressive sexual harassment laws have been met with resistance and hostility by employers, law enforcement, and court officials.

This Article explores the causes of resistance to sexual harassment legislation by focusing on the political, economic, and cultural roadblocks to its full implementation. The Article identifies a variety of factors that are crucial in facilitating or retarding the effectiveness of anti-harassment objectives. It examines each of these factors in light of the American and South African experiences and goes on to demonstrate the effect each factor might have in societies with different cultural and historical starting points. Ultimately the Article concludes that sexism, racism, unequal access to the law, gender-specific cultural norms, and failure to make sexual harassment a priority, may continue to thwart the progress in the area of sexual harassment many countries have made in recent years.

Only law that has cultural legitimacy can be useful as an impetus for social change. A statute's legitimacy, and thus its capacity for social reform, depends in large part upon the eradication of misperceptions and stereotypes about the nature and harm of sexual harassment, and it depends upon the statute's integration into the legal and political discourse on both economic equality and violence against women.

Sexual harassment, South Africa, Employment Equity Act, Title VII, Backlash, Gender Discrimination, Law and social change, Legal reform

Abstract:
In June of 1998 the United States Supreme Court finished a term in which it heard an unprecedented number of sexual harassment cases. The media has hailed this series of decisions as “progressive” and great victories for employees. The Court's attention to sexual harassment came at a time when sexual harassment was already in the headlines, as President Clinton faced accusations of sexual harassment by Paula Jones and criticism from the general public for having an inappropriate sexual relationship with Monica Lewinsky. These events, both in the courts and outside, have brought the term “sexual harassment” into our vernacular and people are more conscious than ever about their interactions with others in the workplace. Society's awareness about the prohibitions against sexual behavior at work led to widespread concern about avoiding liability, resulting in reform of company policies and changing employer and employee behavior in the workplace.

Despite those gains, however, there has been a growing move to reverse the successes. Advocates of sexual harassment law face new obstacles as hysteria mounts surrounding the question of liability. A common perception exists that the law has tipped too far in favor of employees and that plaintiffs now have tremendous power over their employers. This perception often translates into the larger idea that feminism has a hold on the American workplace. People have referred to “feminist ranting about sexual harassment.” Even some feminists have subscribed to the idea that women have been able to use “anti-sexuality for political power,” and, like male chauvinists, feminists too can be “puritanical.”

Sympathy for women bringing suits is low, as people have become less concerned with the problem of sexual harassment and more concerned with the problems associated with false accusations and the victimization of men. A backlash has resulted in reaction to the legal blackmail perceived as the root of many sexual harassment lawsuits.

Not surprisingly, conservative commentators in both mainstream and right-wing media seized on the recent developments in the White House and in the law as an opportunity to challenge progressives and feminists, and their zeal toward achieving political correctness. Critics express concern about what they view to be confusion regarding the law, excessive anti-harassment programs, and the courts' poorly conceived expansion of civil rights protections. Catharine MacKinnon observed that particularly after the publicity surrounding the Paula Jones lawsuit and Monica Lewinsky's testimony, many people claimed that “sexual harassment law is vague, reckless, anti-sex, and lacking in standards.” Others fear that “freedom of speech is being trampled by political correctness, undermining creativity, spontaneity and morale in the workplace.” As one journalist wrote, “we talk and joke about sexual harassment, but we choose our words carefully. Our laughter is strained. Forty years ago, everyone knew how to act at school and work. Now most of us wonder what the rules are.”

Forty years ago, of course, we knew what the rules were because there were no rules about sexual harassment. Today we do not all understand the rules because they have only recently emerged, and we only hear part of the story from the media. But the sexual harassment laws are clearer than most people think. In fact, other than a recent development regarding employer liability, the laws have changed very little in the past decade. What has changed is our awareness of the problems relating to sexual harassment, our willingness to put up with inappropriate behavior in the workplace, and companies' recent push to hold employees and employers accountable for their actions in the workplace.

This Article addresses some of the roots of the backlash against sexual harassment law and posits that it is part of a greater backlash against feminism and political correctness. I argue the media has distorted the meaning of the law so that our common understanding of the law is disconnected from what is actually going on in the courts. I then conclude that the answer to the backlash is not taking a step backward to afford less protection to employees, but rather to educate the public better about the law in an effort to assure the workplace is free from unwelcome intimidation and abuse.

Sexual harassment, sex, gender, discrimination, employment discrimination, media, feminism, backlash

Abstract:
Over the past few decades, the issue of workplace sexual harassment has finally entered into mainstream discourse, and is no longer limited to male-female relations. As sexual minorities are becoming more vocal demanding equal rights, people are beginning to recognize that the same type of sexual harassment in the workplace that has been perpetrated against women is being perpetrated against gay men and lesbians.

Unfortunately, allegations of “same-sex” harassment have, for the most part, been met with disfavor in the courts. Title VII makes it unlawful for an employer to discriminate on the basis of sex. The courts have struggled with whether same-gender sexual harassment can be motivated “because of sex.” Most courts have interpreted the word “sex” in its narrowest sense to mean biological sex, which is determined by a person's genitalia. Based on that interpretation, these courts will find a cause of action only where the conduct at issue was motivated by the employee's physically being male or female. Courts have either explicitly or by unspoken assumption singled out X and Y chromosomes as the sole determinants of a person's gender, failing to consider how the employee self-identifies or how society perceives and defines the gender role and performance of the employee.

The term “sex” embodies many interrelated factors, including chromosomes, genitalia, secondary sex characteristics, gender traits, and sexuality. Traditionally, each of these concepts was thought to embody duality - all people were thought to be either male or female (duality in chromosomes, genitalia, and secondary sex characteristics), masculine or feminine (duality in gender traits), and sexually attracted to only males or only females (duality in sexuality). A person's biological chromosomes and genitalia were used as the determinant of all the other factors. That is, a person with male genitalia was expected to act masculinely and to be sexually attracted to females, and vice versa.

When all five factors converge in one person, the courts are not called upon to grapple with all the ideas embodied in the term “sex.” Issues of sex, sexuality, and gender roles, however, are no longer as simple as they used to be. Reality suggests there is no intrinsic or stable sexual or gender identity. It is now abundantly clear that there is a spectrum of sexes, and gender roles, and a person's sexual identity is not always based on his or her biological organs.

By assuming that maleness and femaleness are two opposing, easily defined, and mutually exclusive categories, the courts perpetuate stereotyped distinctions between the sexes, and exclude from protection those people who are singled out for adverse treatment in the workplace based on their failure to conform to gender stereotypes. The result is confusing jurisprudence which has a disparate impact on sexual minorities. By defining “sex” restrictively as “biological sex,” courts have chosen the least relevant aspect of “sex' as a determinant of whether a person has a cause of action under Title VII. This narrow interpretation of Title VII conflicts with its underlying purpose, failing to assure a work environment free of discriminatory ridicule for all people.

The Article posits that courts' narrow and simplistic reading of the statute ignores the reality that sexual harassment is based on power, not on sexual attraction. Power exists independently of biological sex. Men can be targets of sexual harassment for a variety of reasons - a man in a low level job can be a target of a female boss, and gender performance can reinforce certain assumptions about power. Based on socially constructed norms, certain masculine gender traits have come to be associated with power and success, while anything feminine has come to be devalued in the workplace. Therefore, anyone, male or female, who exhibits feminine characteristics can be a target for sexual harassment. The outdated assumption espoused by many courts that sexual harassment can only occur between men and women lacks insight into the depth of ways one person can assert power over another, the ubiquity of power relations within sexuality, and the complex relationships between sex, sexuality and power.

Title VII is a remedial statute that, under established rules of construction, should be interpreted broadly. Accordingly, courts should interpret “because of sex” in its broadest sense to mean not only biological sex, but also anything relating to sexual issues, behavior, anatomy, or identity, as long as the harassment implicates and exploits power imbalances between the sexes. This more flexible approach to Title VII will allow courts to shift the focus from the sex, gender or sexual preference of the victim, to the nature of the harassing conduct, the motivation behind it, and its effect on perpetuating gender imbalances and stereotypes in the workplace.

Sexual harassment, same sex sexual harassment, Oncale, sex, gender, discrimination, employment discrimination

Abstract:
Over the years, the enforcement of commercial contracts has taken on increased importance. Today, contract law is a viable and innovative tool to protect commercial rights, eagerly inventing novel approaches to issues with an economic or commercial component. For example, contracts of adhesion are often enforced, despite the lack of true assent, in recognition of the realities of modern commerce, in which most buyers and sellers never meet and most signatories do not read the agreements they sign. But its use for the protection of third parties and the public is not always equally pursued, resulting in less attention to non-economic issues and losses.

Through a variety of examples, this Article explores the limitations on the ability of contract law to deal with the protection of third parties and the public. This limitation is manifested in two distinct ways: (1) Commercial contracts are typically enforced without regard to the negative impact they may have on the public; and (2) although some courts appear willing to stretch the bounds of the law to ensure contracts are enforced in commercial contexts, there has been substantially less motivation to enforce contracts for the public good. Accordingly, the Article discusses the innovative and flexible nature of the common law of contracts as it applies to protecting commercial interests and players and the inadequacy of contract law as a means of protecting public and non-economic interests.

Contract law, common law, commercial contracts, public interest, standardized contracts, adhesion contracts, Uniform Commercial Code, Externalities, Private Contract

Abstract:
Employers seeking to enhance their corporate brand or to foster a professional business environment frequently mandate that employees adhere to personal appearance requirements while at work. These requirements often regulate everything from dress and grooming habits to personal hygiene. Though appearance codes are generally based on stereotypical assumptions about how men and women are supposed to look and act, courts tend to acknowledge their validity out of deference to employers' business judgment.

Although many courts treat employer-mandated appearance codes as "legally insignificant" and have long tolerated them, the weight of literature and theory on the subject, as well as the intensity and frequency with which employees challenge them through litigation, indicate that seemingly trivial dress codes can actually have important implications for autonomy and gender equality in the workplace. Far from trivial to some people, dress codes present the dual problem of preventing some employees from expressing their core sense of gender identity, while simultaneously reinforcing hidden prejudices embedded in social norms.

Under the widely-adopted "unequal burdens" test from Frank v. United Airlines, a policy that has different grooming and appearance requirements for men and women is permissible, as long as it imposes equal burdens on males and females and does not limit the employment opportunities of only one sex. Under this test, if a dress code is equally offensive to men and women, it will still be permissible since it does not discriminate against only one sex. Sex-specific appearance codes requiring, for example, men to wear ties and women to wear skirts, both disadvantage individuals who diverge from prescribed, gender-based stereotypes of appropriate appearance and affirm gendered distinctions that devalue women, feminized men, and sexual minorities. Nonetheless, under Frank's unequal burden test, if such dress codes are applied evenly to men and women, they are generally upheld.

Using principles from the equal opportunity harasser doctrine under sexual harassment law as a model for the development of dress code law, I argue that in some cases, even dress codes that equally burden men and women may constitute either gender identity or gender expression discrimination - or both - and thereby violate Title VII of the Civil Rights Act.

Sexual harassment, Dress Codes, sex, gender, discrimination, Title VII

Abstract:
This Article examines the inherent tension between the collegial court philosophy embraced by Justice Ginsburg, and her own position on gender discrimination. This tension is likely exaggerated in light of the divisiveness of the Court and the frequent five-to-four voting on the issue of gender discrimination. Within the framework of her Supreme Court dissents and concurring opinions on gender discrimination, this Article explores whether Justice Ginsburg has been able to maintain dual fidelity to the bulwark of collegiality, i.e., restraint in separate opinion writing, and to her gender postulate. Or, in the alternative, has Justice Ginsburg abandoned the possibly gender-based goal of collegiality in the highly politicized and contentious arena of gender discrimination, particularly as her colleagues have increasingly engaged in individual opinion writing? Consequently, the Article examines not only whether and when Justice Ginsburg has chosen to dissent or concur but also the style and substance of her separate opinions.

Part I of the Article examines Justice Ginsburg's career as a litigator and her deep commitment to the eradication of gender discrimination. Part II considers her thirteen-year tenure as a circuit court judge for the District of Columbia and her reputation as a pragmatic, centrist judge concerned with consensus-building and collegiality. Part III culminates the survey of her career with a study of her voting patterns as a Supreme Court justice in cases involving gender discrimination. Specifically, this Part explores whether her collegiality philosophy has led her to adopt a more moderate approach to gender issues, overlooking relatively minor differences with her more conservative colleagues.

The Article ultimately concludes that the dual objectives of gender equality and collegiality need not be mutually exclusive. Indeed, as evidenced by Justice Ginsburg's separate opinions, these two goals can coexist as a substantial force in advancing the law.

Ruth Bader Ginsburg, Supreme Court, Collegiality, Gender Discrimination

Abstract:
Lying in the shadow of contract law are unifying principles for calculating damages. These principles integrate the purposes motivating rules formalized in Article 2 of the Uniform Commercial Code and the Restatement (Second) of Contracts and their computational methods. Neither the UCC nor the Restatement rules reflect these principles in any way that is apparent on their face. On the contrary, the damage rules in Article 2 of the UCC offer apparently distinct formulas for each type of contract breach that depend on whether the non-breaching party was a buyer or seller, obtained partial performance, or arranged a substitute performance. The Restatement offers different formulas depending on the unhelpful and ultimately irrelevant distinction between the expectation and reliance interests. The Shadow Code offers an approach to contract damage calculation that explicitly reflects the well-recognized compensatory goal.

The Shadow Code restates the law of damages in a single section applicable to all breaches of contract. That section is based on the notion that people contract in order to improve their well-being. Each party ordinarily hopes for some improvement or "surplus" of benefits over costs as a result of contracting. The principle that a party injured by another's breach is entitled to be put in the position he or she would have occupied had the other performed as promised is not novel. It lies at the heart of the UCC and the Restatement. The surplus-based approach to damages recognizes an injured party's entitlement to the difference between the surplus he or she would have realized had the other performed as promised and the actual surplus obtained. It applies to all types of parties injured in all types of partial and total contract breaches, whether consumers or merchants, buyers or sellers.

contract law, remedies, contract damages, Uniform Commercial code, Restatement of Contracts, contract breach

Abstract:
South Africa has recently taken a progressive stand on sexual harassment as one of only a few countries to prohibit sexual harassment directly through legislation. The Employment Equity Act, enacted in October, 1998, deals primarily with affirmative action, but is also groundbreaking in the area of sexual harassment. This legislation, with its accompanying Code for handling sexual harassment cases, can be considered an international model because of its comprehensive approach to and ambitious treatment of sexual harassment, specifically defining the type of conduct that is prohibited, and providing detailed procedures to address the problem and prevent its recurrence.

Although this new law is an important starting point for combating sexual harassment, political, social, and economic progress are not necessarily close behind. A variety of factors can facilitate or retard the effectiveness of anti-harassment objectives. The law's effect on social reform in South Africa, for example, might be questionable, given the endemic gender violence, the legacy of apartheid, the level of economic development, the political power of the trade union movement, and the extent of unemployment. Since the end of apartheid, South African women have made great gains in representation in government, law and society. Law, certainly an important mechanism for change, has been successfully used to remove the most blatant discrimination against women. But women are at a critical juncture. Gender equality is central to the continued development of democracy in South Africa, and many women have yet to feel the effect of the new laws. Because of lack of education and resources, a majority of women have not been able to take advantage of the new legislation, and because of cultural notions about women and institutionalized gender stereotypes, women's experiences and testimony have been largely discredited and devalued. All laws are enforced and interpreted by individuals - equality will not be a reality for most women until gender stereotypes no longer inform the thinking of the judiciary, prosecutors, police and the larger society.

Sexual harassment, South Africa, Employment Equity Act, Title VII, Gender Discrimination, Law and social change, Legal reform

Abstract:
Many federal programs in such areas as welfare, housing, and education have as their sole purpose the protection and assistance of the poor. Yet often times inaction by federal officials or misconduct by state administrators result in the wrongful denial to the poor of benefits specifically intended for them. In those situations, courts have often enforced the underlying public policy of the statutes through implied rights of action to private parties. Courts have recognized that allowing the accused administrators to determine congressional intent would frustrate underlying public policy as well as the legitimate expectations of the poor.

The opportunity to seek redress is critically important to the poor. Homeless people typically have no political or economic power to go before Congress and as a result can only turn to the courts. If that avenue is closed to them as well, homeless people will be left with no forum to redress their grievances. Such results have the harshest consequences on the poor, as they are fighting not only against economic harm, but also against irreparable harm such as inadequate living conditions, health care, education and family support.

The Stewart B. McKinney Homeless Assistance Act was enacted to provide rights and assistance to homeless people. The Act does not contain an express private right of action, and it is yet uncertain whether Congress intended one to be implied. This Article proposes that courts settle the issue with a definitive ruling. Analogizing the McKinney Act to other statutes with similar impact on the poor, the Article concludes that despite the Supreme Court's recent reluctance to imply private rights of action, federal courts should permit private claims under the McKinney Act.

McKinney Homeless Assistance Act, Homeless, Private Right of Action

Abstract:
This article which deals with same-sex sexual harassment after the Supreme Court's recent decision in Oncale v. Sundowner Offshore Services. The Article examines the nature of the conduct at issue in many same-sex sexual harassment cases and posits that this conduct, in its reliance on gender-based stereotypes and norms, its focus on the target's genitalia and other sex-based physical attributes, and its enactment of scenarios of sexual conquest, domination, exploitation and abuse designed to impart the harasser's sexual potency and the target's sexual vulnerability, demeans and intimidates the target in a manner that directly implicates his masculinity and status as a man. Therefore, we conclude, such conduct is based on the target's sex.

Despite the striking similarities between these forms of conduct directed at male targets and the conduct directed at female targets, and despite the similar impact of this conduct on the target's working environment, the courts have analyzed this conduct in a manner that differs markedly from the analysis in the opposite-sex context. In contrast to the opposite sex cases, which consistently recognize various distinct but interrelated aspects of the target's projected and perceived sex as elements of her protected "sex" within the meaning of Title VII, many of the same-sex cases tend to disregard the subtleties and complexities inherent in the notion of a person's sex, and instead have reverted to a simplistic, monolithic conception of the term which construes "sex" as strictly coterminous with biological sex. As a result of the artificially constrained notions of "sex" which the courts have formulated and applied in the same-sex cases, the jurisprudence in this area of the law is riddled with inconsistencies.

The Oncale decision establishes that conduct is not excluded from the purview of Title VII's "because of . . . sex" language merely because the harasser and the target are of the same sex. Although the Court resolved some of the conflicts among the lower courts, it did not elucidate the parameters of that language or articulate standards for identifying conduct that satisfies it, leaving unresolved numerous tensions and contradictions that had emerged in the lower courts. We ultimately argue that the lower courts must eschew the simplistic, monolithic conception of the term "sex" which had emerged in the pre-Oncale jurisprudence and which Oncale accepted uncritically, and must begin to grapple with the more complex significance of an individual's sex and the myriad ways in which it affects that individual's interactions with others in the workplace and in the broader society, and thus to move toward a formulation of the notion of "sex" which comports with the broader jurisprudence and underlying policies of Title VII.

Oncale, sexual harassment, same-sex sexual harassment, Title VII

Abstract:
This Article presents empirical data on the operation of the small claims court in the city of Denver. The study underlying the article evaluated the court in terms of (1) users' reactions; (2) the correctness of outcomes; (3) the correctness of procedures; and (4) the effective power of the court in terms of enforcement of results.

The study shows that small claims courts may be paradigmatic of governmental responses to social problems. Overall, it is hard to determine whether the individuals they actually do serve are better off for having been able to use their processes.

The study concludes that the rate of victory for plaintiffs who file claims and appear in court is eighty-five percent. Of winning plaintiffs, fifty-five percent never collect any part of their judgments. Overall, among victorious plaintiffs, the judgment amounts collected equal thirty-one percent of the total amounts awarded. Thus, as has been the pattern in other small claims courts studies, the operation of the court must be viewed in the context of overwhelming advantage to plaintiffs at the trial stage and of significant disadvantage to plaintiffs after trial. Accordingly, this Article proposes that we direct more funds to small claims courts to reorganize them so that they might operate more efficiently.

Small Claims Court

Abstract:
Sexual harassment is predicated on the imbalance of power. Landlords typically have significant power over their tenants, including the power to decide who may rent an apartment, to evict a tenant, to provide or withhold services, and to set the rent. Landlords have additional power because of the historical allocation of property in this society and widespread shortages of adequate rental housing in America's urban areas.

The housing crisis in our nation's cities most seriously affects low-income Americans. During the past few decades, the median monthly rental rates increased more than double the rate of salary growth over the same period. Poor tenants, as a result, are often in subordinate positions with respect to their landlords. Low-income women, who comprise the majority of tenants victimized by sexual harassment, are further subordinated by socialized norms. An unequal power relationship involving a dominant male provides an environment for sexual harassment of women.

In some jurisdictions, women who are sexually harassed by their landlords can now seek recourse through Title VIII of the Civil Rights Act, commonly known as the Federal Fair Housing Act. The Act makes it unlawful to discriminate in the sale or rental of a dwelling on the basis of sex. The few courts that have addressed the issue of landlord sexual harassment have not agreed on a standard of proof. In a majority of rental sexual harassment cases, the victims are women. In other causes of action typically involving women victims, such as hostile work environment claims under Title VII , or claims of domestic violence or rape, there has been rigorous debate about which standard of proof courts should apply. Although the reasonable person standard has remained the majority rule, many courts and commentators suggest that where the majority of victims are women, determinations of whether conduct constitutes sexual harassment should be made from the perspective of the reasonable woman. Neither the reasonable person nor the reasonable woman standard has been completely effective in sexual harassment claims under Title VII, and despite the importance of the debate, scholars have been unable to reach a consensus. Many commentators believe the seemingly neutral reasonable person standard actually reflects the male point of view. They believe the reasonable woman standard must be applied to take into account the perspective of the woman. Others, however, suggest that the reasonable woman standard is inherently biased toward the victim and is difficult to apply. As long as the jurisprudence remains trapped in this circular debate between the reasonable person and reasonable woman standards, courts will never focus on the real problem associated with sexual harassment - power. Sexual harassment occurs when one person is in a position of power with respect to the other. Because of the historical allocation of property, and the scarcity of adequate rental housing, landlords usually have some power over their tenants. When compounded with the fact that tenants are often poor minority women who are socially, politically, and economically powerless, the power imbalance is complicated. The reasonableness standards are not designed to specifically take into account the unique power disparities often seen in the landlord/tenant relationship.

This Article proposes that in claims of hostile housing environment under Title VIII, courts shift their focus from the inherent differences between men and women or between poor people and rich people, to the unequal balance of power that underlies the very construction of the landlord/tenant relationship. The Article ultimately proposes a standard that focuses on the power distribution in the landlord/tenant relationship. Specifically, I propose courts use unconscionability law as a framework for evaluating conduct stemming from a disparity in bargaining power.

sexual harassment, sex, gender, discrimination, Title VII, Title VIII, Housing discrimination, Landlord/tenant