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Abstract:
This essay argues that the Supreme Court's recent decision in Boumediene v. Bush, its latest pronouncement on the detainees in Guantanamo Bay, should be understood as a jurisdiction-stripping case. Most of the commentators to address the case so far have seen it as a case about the war on terror, or about the reach of habeas corpus. I argue that this decision takes significant steps toward resolving a debate that has been raging among the giants of constitutional law for more than 50 years: Can Congress "strip" jurisdiction from the federal courts to prevent them from hearing certain important cases?

Although the Court has previously gone to great lengths to avoid answering this question, and although Boumediene could have done the same, the Court instead engaged the issue and engaged it forcefully. The Court's decision rested upon broad and powerful separation of powers principles, strongly suggesting the indispensability of judicial review. This essay argues that these principles boldly suggest something that the Court has only hinted at before: that Congress cannot preclude federal courts from hearing constitutional claims; not just habeas claims, but all constitutional claims.

The essay also addresses the normative implications of Boumediene, arguing that the opinion represents a bold but appropriate response to what the Court perceives as an imperious President and an enabling Congress. As such, this case does not represent an imperious Court, so much as it represents a restoration of a healthier balance of power.

Abstract:
This Article rejects the modern feminist criticism of sexual harassment law and defends the current judicial paradigm. The modern feminist paradigm argues that sexual harassment results from gender-based power dynamics; the current judicial paradigm suggests that sexual harassment may be the product of sexual attraction. Early feminists relied on the attraction-based paradigm to solve the practical problem of demonstrating causation - i.e., that sexual harassment occurred "because of" sex, as required by anti-discrimination laws. However, in the wake of judicial acceptance of this approach, a "second wave" of scholarship has assailed its premises and results. Indeed, these attacks have been so numerous, so intense, and so persuasive that the attraction-based paradigm has fallen from favor and is now viewed by most academics as completely discredited.

This Article seeks to re-habilitate a theory of causation based on sexual attraction, which I call "attraction theory." This Article will, for the first time, provide a comprehensive analytical look at this theory, which provides an efficient, streamlined model of proof for many sexual harassment plaintiffs. In so doing, this Article narrows some of the gaps that second wave feminists argue exist in attraction theory (including a gap that exists for bisexual harassers), and urges the courts to expand their use of presumptions regarding harassers' sexual orientation. This Article also addresses the normative criticisms of attraction theory, including charges that the theory relies on archaic notions of sexual harassment as being about attraction rather than power, and that attraction theory fails to provide a compelling conceptual justification for proscribing sexual harassment, concluding that none of these concerns justify scrapping attraction theory. Finally, this Article questions the efficacy of some of the power-based theories of causation proposed by second wave feminists, arguing that reliance on these theories, to the exclusion of attraction theory, will likely result in many victims being denied a remedy.

Sexual Harassment, Discrimination, Sex Discrimination

Abstract:
Currently, there are three different frameworks for litigating disparate treatment cases: one prescribed by the Civil Rights Act of 1991, one prescribed by Price Waterhouse v. Hopkins, and one prescribed by McDonnell Douglas v. Green. Each provides a different causation requirement and burden of proof. The fact that the Supreme Court and Congress have failed to delineate when which framework applies has caused multiple circuit splits and vast amounts of costly litigation. But there is an even more significant cost: Two of the three frameworks (Price Waterhouse and McDonnell Douglas) have significant normative flaws. This Essay articulates those flaws. It then provides a way out of this morass: a way in which the lower courts can stop using the two flawed frameworks and truly unify disparate treatment law under the 1991 Act framework

Abstract:
This Article seeks to reclaim the promise of McDonnell Douglas and, in so doing, clear up the quagmire that has enveloped disparate treatment anti-discrimination law.

In recent years, McDonnell Douglas, the three-step burden-shifting framework at the foundation of disparate treatment law, has come under sustained and acrimonious attack. Legions of critics accuse the framework of placing unfair burdens on plaintiffs, being ineffective at addressing the types of discrimination that are most prevalent in the modern workplace, and undermining the effort to eradicate employment discrimination. At this point, the framework has few, if any, friends among commentators. However, the courts refuse to relent, often forcing unwilling plaintiffs to use this framework.

The ongoing battle in the courts over when plaintiffs must use this framework has resulted in a disparate treatment doctrine that has appropriately been referred to as a quagmire. And the Court's recent attempt to address this morass in Desert Palace v. Costa only made things worse.

This Article takes a new approach toward McDonnell Douglas: It defends the framework. While it argues that McDonnell Douglas should never be required, it also argues that the framework has been maligned. It is innocent of most of the charges leveled at it by its critics. In fact, it should be seen as a gift to disparate treatment law.

The arguments in this Article are not based on interpretations of Desert Palace, which have become common in the academy and which have been largely ignored by the courts. Nor does it seek unrealistic reform from Congress. Instead, these arguments proceed from a detailed understanding of causation articulated in an earlier article I wrote in the GEORGETOWN LAW JOURNAL. This contextualization permits, for the first time, a careful exploration of exactly what McDonnell Douglas does and what it does not do.

This exploration not only refutes some persistent and widespread myths about McDonnell Douglas, such as the nearly universally held belief that this framework requires but for causation. It also clears up the doctrinal morass that has developed, making clear the proper role for McDonnell Douglas in current disparate treatment doctrine. But most importantly, it demonstrates that this framework should not be loathed by those who seek to eradicate employment discrimination. Rather, it should be embraced.

Abstract:
Suppose that an employer fires an employee for two reasons: because the employee is a woman and because she is habitually tardy. In such a "mixed motive" case, can we say that the employee was fired "because of" her sex, as required by most anti-discrimination laws?

The answer depends on what type of causation the law requires. But Congress has not specified what type of causation is required. Title VII of the Civil Rights Act of 1964 provides no guidance on this issue. Nor do most of the disparate treatment statutes passed since that time. And while Congress had the opportunity to answer this question definitively in the Civil Rights Act of 1991, it failed to do so coherently. As a result, courts have struggled to find an appropriate standard of causation, generating a thicket of vague, undefined, and often-conflicting tests and formulations.

This Article cuts through that thicket, providing a comprehensive framework of potential causal concepts based on the literature of logical causation. Armed with this framework, this Article demonstrates that the law's current approach to causation is fundamentally flawed in two critical respects: First, current doctrine is ineffective at prohibiting discriminatory decision-making. Second, current doctrine is one-sided in its approach to compensation, favoring defendants over plaintiffs - even when the defendant has engaged in blameworthy conduct and the plaintiff is blameless. This Article concludes by proposing a series of reforms, including a new standard of causation (a "necessity-or-sufficiency" test) similar to the substantial factor test in tort law, and a comparative fault rule for determining compensatory damages.

discrimination, Title VII, Civil Rights Act of 1991, disparate treatment, civil rights, race, sex, gender, causation, employment

Abstract:
In the recent case of Gross v. FBL Financial Services, the Court addressed what it means to say that an employee was demoted “because of” his age. Perhaps more importantly, it addressed the question of whether “because of” has the same meaning in age discrimination cases as it does in cases involving other types of discrimination, such as race or sex discrimination. For many years, the Court had espoused uniformity, suggesting that the phrase “because of” should have the same meaning in all anti-discrimination statutes. But in Gross, the Court rejected this ideal of uniformity, holding that “because of” means one thing for race discrimination plaintiffs, and something else (something less favorable) for age discrimination plaintiffs.

This essay critiques Gross’s rejection of uniformity on four grounds. First, it argues that the ideal of uniformity makes good sense, both as a practical matter and as an understanding of Congressional intent; yet, Gross rejected this ideal without a good explanation. Second, it argues that the timing of the Court’s about-face on uniformity is suspect; that it may suggest a Court that is recalcitrant after having been rebuked by Congress or resistant to Congress’s new definition of “because of.” Third, it argues that the Court’s about-face on uniformity almost certainly reflects a problematic resistance to burden-shifting in anti-discrimination cases. And fourth, it argues that the definition of “because of” adopted by the Court in Gross is normatively flawed, both in its rejection of burden-shifting and in its embrace of a but-for standard of causation for liability. Accordingly, this essay ends with a call for legislative action, not just over-ruling Gross, but unifying disparate treatment law around a good definition of “because of.”

Abstract:
In City of Richmond v. J.A. Croson Co. the Supreme Court limited the ability of governments to use affirmative action to remedy what might be termed "no fault" discrimination - that is, discrimination in which those who have been harmed have no remedy under antidiscrimination law, either because the discrimination occurred long in the past, because the specific perpetrators cannot be identified, or because of a lack of proof.

The Court's limit on the use of race-based affirmative action is based on three arguments. First, the Court suggests that racial asymmetries in markets do not necessarily represent an injury to excluded minority group members. Second, it proposes that minority exclusion from these markets can be remedied through race-neutral policy. And third, it argues that a race-conscious program to benefit victims of no-fault discrimination is likely to be over-inclusive, creating a "moral hazard" for minority group members and placing an unfair burden on non-minority competitors.

An economic analysis of these arguments, however, shows that they are all flawed. This Note examines the effects of discrimination in the marketplace to suggest a connection between current racial disparities and past "no-fault" discrimination. It then demonstrates why race- neutral policies are likely to prove ineffective for reducing these disparities. Finally, it argues that competitive, race-conscious affirmative action is unlikely to create a "moral hazard" and that the burden placed on non-minorities by such a program is justifiable.

Affirmative Action, Law and Economics, Discrmination, No Fault

Abstract:
In recent years, the insurance industry has come under attack for engaging in "discriminatory" practices against minorities. Critics assert that black applicants for insurance are often charged higher rates than white applicants, or are even denied certain kinds of insurance altogether. In response, insurance companies offer the following defense: any difference in rates between racial groups simply reflects the underlying riskiness of the average white and black applicant in society. In other words, insurance companies suggest that they have a perfectly rational reason to discriminate against minorities. On average, minorities are more expensive to insure.

The profit-making objective of this kind of "rational discrimination" distinguishes it from bigotry or "irrational discrimination." While bigotry is generally symptomatic of racial animus, rational discrimination is motivated only by financial concerns. Hence, it is difficult to incorporate any element of fault, or malevolent intent, into an analysis of rational discrimination.

Policy makers and academics have reached little consensus about how to address the implications of rational discrimination. This Current Topic argues that rational discrimination should not be viewed simply as a question of profitability or financial interests, but must also be approached from a moral perspective. Part One examines the underlying cause of rational discrimination in one particular insurance market, locating its ultimate source in the historical injustices perpetrated against Blacks. This section condemns rational discrimination for perpetuating and even exacerbating social inequalities. The analysis suggests that our society will not fully succeed in reducing economic asymmetries between Blacks and Whites unless it confronts rational, as well as irrational, discrimination.

Parts Two and Three examine two alternative methods of interfering with rational discrimination in insurance: prohibiting the practice altogether or compensating for its deleterious effects through a subsidy. While either approach will reduce the correlation between race and risk, this analysis suggests that a subsidy offers significant moral and practical advantages over a prohibition.

Discrimination, Law and Economics, Insurance