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Table of Contents

What is the Settlement Rate and Why Should We Care?

Theodore Eisenberg, Cornell University - School of Law
Charlotte Lanvers, Disability Rights Education & Defense Fund, Inc.

Getting to the Roots of School Segregation: The Challenges of Housing Remedies in Northern School Desegregation Litigation

Erin C. Nave, Washington University School of Law in St. Louis

Instead of ENDA: A Course Correction for Title VII

Jennifer S. Hendricks, University of Tennessee College of Law

LAW & SOCIETY: PRIVATE LAW - DISCRIMINATION LAW ABSTRACTS
Sponsored by: Indiana University School of Law - Bloomington

"What is the Settlement Rate and Why Should We Care?" Free Download
Cornell Legal Studies Research Paper Series

THEODORE EISENBERG, Cornell University - School of Law
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CHARLOTTE LANVERS, Disability Rights Education & Defense Fund, Inc.
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This article first shows that different research questions can yield different settlement rates. Using data gathered from about 3,300 federal cases in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA), differing measures of settlement emerge depending on whether one is interested in (1) settlement as a proxy for plaintiffs' litigation success or (2) settlement as a measure of litigated disputes resolved without final adjudication. Using settlement as a proxy for plaintiff success, we estimate the aggregate settlement rate across case categories in the two districts to have been 66.9% in 2001-02. Regardless of the method of computing settlement rates, no reasonable estimate of settlement rates supports an aggregate rate of over 90% of filed cases, despite frequent references to 90% or higher settlement rates. The aggregate rate for the EDPA alone was 71.6% and for the NDGA alone was 57.8%, suggesting significant interdistrict variation, which persists even within case categories. We report separate settlement rates for employment discrimination, constitutional tort, contract, and tort cases in the two districts. The highest settlement rate was 87.2% for tort cases in the EDPA and the lowest was 27.3% for constitutional tort cases in the NDGA. Our results, consistently with prior settlement research, suggest a hierarchy of settlement rates. Of major case categories, tort cases tend to have the highest settlement rates, then contract cases, then employment discrimination cases, followed by constitutional tort cases. Attorney fee structure and the nature of the parties may explain settlement rate variation. Our findings provide no evidence of a material change in aggregate settlement rates over time.

"Getting to the Roots of School Segregation: The Challenges of Housing Remedies in Northern School Desegregation Litigation" Free Download

ERIN C. NAVE, Washington University School of Law in St. Louis
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The critical relationship between racially identifiable neighborhoods in northern cities and school segregation has been recognized by scholars, lawyers and courts for decades. However, despite this close interrelationship, civil rights attorneys have been frustrated in attempts to gain the courts' approval of combined school and housing remedies. This essay seeks to illustrate the challenges of winning housing remedies in northern school desegregation cases: (1) proving causation in combined school and housing claims is difficult and requires more resources than most plaintiffs are willing or able to expend; and (2) the Justice Department remains either unable or unwilling to tackle both issues at once. Despite these obstacles, evidence of residential segregation has still historically played a significant strategic role. This essay highlights the Indianapolis Public Schools litigation, U.S. v. Board of School Commissioners of the City of Indianapolis, as an example of how litigators were able to gain an interdistrict school desegregation plan which included a significant, though limited, housing remedy. As the isolation and re-segregation of urban school districts in northern cities continues, it is essential that the Justice Department and civil rights organizations re-examine the critical relationship between housing and schools. This article is also available at the Civil Rights Litigation Clearinghouse.

"Instead of ENDA: A Course Correction for Title VII" Free Download
Northwestern University Law Review Colloquy, Forthcoming

JENNIFER S. HENDRICKS, University of Tennessee College of Law
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In September 2008, the D.C. federal court issued a landmark decision holding that discrimination against a transgender person was sex discrimination under Title VII. This decision throws into sharp relief the ongoing debates among supporters of the Employment Non-Discrimination Act about whether the compromise on including protection for gender identity claims. Consideration of ENDA in some form will likely be early on the agenda of the next Congress, especially under a Democratic administration likely to support the bill. This essay proposes an alternative to ENDA that would embrace the theoretical connections between sex, gender, and sexual orientation, with important practical consequences for the relief available to plaintiffs.

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Solicitation of Abstracts

LAW & SOCIETY: PRIVATE LAW - DISCRIMINATION LAW, edited by Julia Lamber, is dedicated to the distribution of empirical or theoretical scholarship on anti-discrimination law from any disciplinary perspective. Covered topics include prohibitions on discrimination in employment and accommodations, bona fide occupational qualifications, discriminatory intent, discriminatory impact, statistical proof of discrimination, hate-crime legislation and affirmative action.

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Advisory Board

Law & Society: Private Law - Discrimination Law

ALFRED C. AMAN
Director, Center for Advanced Studies, Roscoe C. O'Byrne Professor of Law, Indiana University School of Law-Bloomington, Dean Alfred C. Aman, Jr., Suffolk University Law School

JEANNINE BELL
Professor of Law, Indiana University School of Law-Bloomington

PETER CARSTENSEN
George H. Young-Bascom Professor of Law, University of Wisconsin Law School

KENNETH GLENN DAU-SCHMIDT
Co-Director, Center for Law, Society and Culture, Willard and Margaret Carr Professor of Labor and Employment Law, Indiana University School of Law-Bloomington

LAUREN B. EDELMAN
Director, Center for the Study of Law and Society, Agnes Roddy Robb Professor of Law and Professor of Sociology, University of California, Berkeley - Jurisprudence & Social Policy Program and Center for the Study of Law and Society

HOWARD S. ERLANGER
Voss-Bascom Professor of Law, Professor of Sociology, President, Law and Society Association, Review Section Editor - Law & Social Inquiry, Director - Institute for Legal Studies, University of Wisconsin Law School

LUIS E. FUENTES-ROHWER
Associate Professor of Law, Adjunct Professor of Latino Studies, Adjunct Professor of Political Science, Indiana University School of Law - Bloomington

MARC GALANTER
John & Rylla Bosshard Professor of Law, University of Wisconsin Law School, Madison

MICHAEL GROSSBERG
Co-Director, Center for Law, Society and Culture, Professor of History & Law, Indiana University School of Law - Bloomington

WILLIAM D. HENDERSON
Associate Professor of Law, Indiana University School of Law-Bloomington

ANNA-MARIA MARSHALL
Editorial Advisory Board, Law and Society Review, Assistant Professor, University of Illinois at Urbana-Champaign - Department of Sociology

LYNN MATHER
Director - The Baldy Center for Law and Social Policy; Professor of Law and Political Science, University at Buffalo Law School, SUNY

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

JOYCE STERLING
Professor of Law, University of Denver - Sturm College of Law

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