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Same-Sex Harassment After Boh-Brothers
Get PDFBecause Equal Employment Opportunity Commission v. Boh Brothers Construction Company ostensibly represents the first faithful application of the gender-stereotyping theory in the context of same-sex harassment litigation, additional courts may elect to abandon the objective-evidence standard in favor of adopting the Fifth Circuit’s subjective-perception test. Employers, therefore, must resist the temptation to dismiss Boh Brothers as a legal aberration confined to the Fifth Circuit and instead take steps to prepare for the possibility of a legal environment in which overtly masculine men and patently feminine women may assert viable same-sex harassment claims. By eliminating the requirement that harassees exhibit readily observable, objectively gender-nonconforming characteristics in the workplace while at the same time mandating that courts conduct a rigorous, fact-intensive inquiry into the idiosyncratic beliefs and perceptions of individual harassers, the subjective-perception test would seem to portend a significant expansion of employer liability
Protecting the Watchdog: Using the Freedom of Information Act to Preference the Press
Get PDFUntil the modern-day press can determine how to profit from investigative journalism and begin to provide the kind of accountability reporting traditionally practiced by newspaper reporters, it needs a legal boost. Providing legal preferences for the press is nothing new, but it has not been done meaningfully for too long. Preferences that account for an unrelenting news cycle and the possibilities for instantaneous distribution of the news are needed.
FOIA is a logical place to start. Its goal is the promotion of transparency and democracy. But it too has long faltered in achieving this goal and, by many measures, is in desperate need of an overhaul. Amending FOIA’s expedited processing provision to create the presumption of “compelling need” for requests by journalists might finally give investigative journalists the quick and complete access to certain government information that they have long sought. In the process, journalists would be better able to serve their watchdog function and to continue barking loudly in the years to come
Restructuring Municipal Bankruptcy
Get PDFWhat sorts of legal relief should be available to a municipality in financial distress? Chapter 9 of the Bankruptcy Code has served as an option of last resort for many municipalities over the years. But as this Article illustrates, Chapter 9 arguably falls short of an effective solution and at times seems to contravene the foundational principles underlying bankruptcy law. By examining recent Chapter 9 filings, this Article presents a comprehensive analysis of how and why Chapter 9 has failed to address the problems that characterize municipal insolvencies. It argues that Chapter 9, in both practice and principle, has proved unsatisfactory in combating the very issues it was designed to resolve. After highlighting Chapter 9’s shortcomings, this Article suggests critical areas of reform that will begin to reconcile Chapter 9 with the broader goals of bankruptcy law
Still Not Equal: A Report from the Red States
Get PDFThis chapter considers how the LGBT movement might pursue legal equality — alongside lived equality — now that same-sex couples enjoy the freedom to marry across the United States. In particular, it focuses on the passage of antidiscrimination laws in swing states and red states. While this objective may sound familiar — perhaps even passé — the political dynamics and strategic dilemmas that it presents are unprecedented. As one activist admits, the challenges now facing LGBT people in swing states and red states are “unlike anything we’ve faced before.” The chapter begins by explaining why the LGBT movement is likely to turn “back to work” after marriage equality by focusing on the passage of antidiscrimination laws. Next, it argues that the LGBT movement will undergo two strategic shifts in pursuing this work — first, an increased investment in local rather than national lobbying, and second, an increased investment in red states and swing states, as opposed to blue states. Finally, the chapter claims that the LGBT movement will confront two strategic dilemmas in pursuing this work — whether to lobby for piecemeal bills or package deals, and how to use litigation and lobbying in ways that support each other. Without attempting to resolve the first dilemma, it argues that lobbyists must not entertain exemptions that apply only to claims brought by LGBT plaintiffs — or more broadly, any protections that fall short of what might reasonably be achieved through litigation under existing antidiscrimination laws
Same-Sex Marriage Litigation and Children\u27s Right to be Queer
Get PDFThis essay examines how lawyers and judges have framed the question of children’s queerness in litigation over samesex marriage. First, it argues that in United States v. Windsor and Obergefell v. Hodges, the US Supreme Court invoked the tropes of dignity, injury, and immutability to set the outer limits of sexual liberty for both children and adults. Next, the essay looks back to the early work of queer theorists, legal scholars, and lawyers to unearth a more promising vision of law’s relationship to children’s queerness. By juxtaposing how two judges approached the possibility of the gay child in Utah and California, it develops a claim that has yet to be vindicated — that the US Constitution protects every child’s right to be queer
Scrutinizing Immutability: Research on Sexual Orientation and U.S. Legal Advocacy for Sexual Minorities
Get PDFWe review scientific research and legal authorities to argue that the immutability of sexual orientation should no longer be invoked as a foundation for the rights of individuals with same-sex attractions and relationships (i.e., sexual minorities). On the basis of scientific research as well as U.S. legal rulings regarding lesbian, gay, and bisexual (LGB) rights, we make three claims: First, arguments based on the immutability of sexual orientation are unscientific, given what we now know from longitudinal, population-based studies of naturally occurring changes in the same-sex attractions of some individuals over time. Second, arguments based on the immutability of sexual orientation are unnecessary, in light of U.S. legal decisions in which courts have used grounds other than immutability to protect the rights of sexual minorities. Third, arguments about the immutability of sexual orientation are unjust, because they imply that same-sex attractions are inferior to other-sex attractions, and because they privilege sexual minorities who experience their sexuality as fixed over those who experience their sexuality as fluid. We conclude that the legal rights of individuals with same-sex attractions and relationships should not be framed as if they depend on a certain pattern of scientific findings regarding sexual orientation
Growth, Land Use, and Planning in Bonner County, Idaho
Get PDFDuring the summer and fall of 2016, Environmental Dispute Resolution Program staff conducted in-‐depth confidential interviews with 30 individuals representing a diverse range of stakeholder groups in Bonner County, Idaho. The intent of these interviews was to illuminate the diversity of perspectives, areas of agreement and disagreement, and opportunities and challenges related to growth, land use, and planning in the county. A list of stakeholder groups and jurisdictions represented by interviewees is provided in Appendix A. This report shares the findings from this assessment, which are organized according to: summary of findings; vision and priorities for Bonner County; sources of tension and disagreement; specific concerns; perspectives on engaging key stakeholders and the public; and perspectives on countywide coordination and collaboration
Concerns About Justification for Fetal Genome Sequencing
Get PDFThe proposal by Chen and Wasserman (2017) contributes to a long-standing debate about the scope of prenatal screening services. With realistic prospects of fetal genome-scale sequencing from noninvasive maternal blood sampling (NIPW), their framework is timely. However, we outline a number of concerns regarding this approach, ranging from the philosophical to the social and clinical. A key concern in this literature is that the framework lacks a clear philosophical foundation. Despite the long history of prenatal diagnosis (PND), a central question remains regarding the core justification for these services
Mediation as Regulation: Expanding State Governance over Private Disputes
Get PDFAcross the United States, state legislatures are issuing new mediation mandates that govern how private parties resolve their disputes. Legislatures embed these mediation mandates into specific statutory regimes ranging from foreclosure to health care to insurance coverage. Rather than leave decisions about ADR design to other state institutions, like courts or administrative agencies, legislatures increasingly retain that authority and formalize the mediation process with legal requirements that regulate parties’ behavior and influence mediation outcomes. This Article explains how legislatures wield mediation as a regulatory tool in this latest phase of mediation’s institutionalization. It argues that statutory mediation mandates should be viewed as a form of decentralized governance, a paradigm that reconfigures the relationship between public and private spheres of power. Viewing these mandates as decentralized governance reveals what can be helpful, and also problematic, about formalizing mediation and underscores why legislatures must exercise care when designing procedural architecture
Public Participation in Risk Regulation: The Flaws of Formality
Get PDFDread risks draw significant public attention in both the administrative process and the courts. Yet there are a number of dysfunctions at the intersection of procedures, participation, and agency decision-making regarding such risks. This Article elaborates the participatory dysfunctions for dread risk regulation, considering formal APA procedures as well as casting complexity as a variety of formality. Inspired by recent executive actions for improving participation and incorporating social science insights into the regulatory process, this Article sets a research agenda that spans the fields of risk perception, procedural justice, and administrative law