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Foster v. Chatman: A Missed Opportunity for Batson and the Peremptory Challenge
No full textIn 2016, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way to eliminate discriminatory peremptory challenges is to eliminate the peremptory challenge. The Court in Foster undertook a close reading of the prosecutors\u27 reasons and found race to be the basis for the prosecutors\u27 peremptory challenges. This Article identifies the strengths and weaknesses of the Court\u27s opinion in Foster. However, Foster\u27s case was unusual because the prosecutors\u27 notes, with their explicit references to African-American prospective jurors\u27 race, were in effect a smoking gun. Without such notes, the prosecutors\u27 seemingly race-neutral explanations would have sufficed under Batson. The Court needs to recognize the ineffectiveness of Batson. It could tweak the Batson test in different ways, such as by giving more weight to discriminatory effects or practices or by devising a stronger remedy. In the end, however, the only remedy that is adequate to the task is the one that Justice Marshall proposed in his Batson concurrence thirty years ago: elimination of the peremptory challenge
Post-Trial Plea Bargaining and Predictive Analytics in Public Law
No full textAdam Gershowitz’s article calling for post-trial plea bargaining in capital cases reasons that governors should commute sentences to life in prison, in exceptional cases, to limit the costs of protracted post-trial litigation over imposition of the death penalty. The commutation power, in his view, resembles pre-trial plea bargaining in that both the state and the criminal defendant can benefit—the state saves resources while the defendant gets off death row.Gershowitz’s article, therefore, affords a window into the increasing use of predictive analytics in deciding whether to bring or resolve litigation. Sifting through data on all prior capital cases can yield clues as to the likelihood of success or the length of litigation in future capital cases. Not surprisingly, the past can, to some extent, help us predict the future and thereby inform the governor’s commutation decision.Deployment of predictive analytics is more familiar in the private sector. The life insurance industry historically is predicated on actuarial science, and credit card companies rely on complex data to score riskiness of a loan or to detect fraud. Even sports teams follow a “Moneyball” approach to drafting and acquiring the best talent possible based on prior data.Gershowitz’s article presages the role that predictive analytics will play in the public sector, saving vast resources and limiting subjectivity in governmental decision-making. Reliance on prior data can help determine when the government should settle torts cases, pay Veterans claims, and subject those receiving disability to review to determine if their disability continues. Predictive analytics may also help the IRS streamline tax auditing and collection. On the other hand, unlike in private law, individuated decision-making may be required by the government either under the Constitution or legislative directives. Moreover, the government’s consideration of historical factors correlated with protected categories such as race may result, on occasion, in discrimination when reliance on the prior data culminates in denial of a benefit or increased punishment. As with any other technological breakthrough, predictive analytics as applied to the public sector brings tremendous promise but concerns as well
Against Gay Potemkin Villages: Title VII and Sexual Orientation Discrimination
No full textShould Title VII allow employers to invoke a “love the sin, hate the sinner” defense to escape liability for firing lesbians, gays, and bisexuals? According to one prominent federal judge, the answer is “yes.”This Essay examines federal judges’ evolving and correct recognition that sexual orientation discrimination claims are colorable under Title VII’s existing framework. The Essay compares the arguments concerning the actionability of sexual orientation claims laid forth in the Second Circuit (Christiansen v. Omnicom), the 7th Circuit (Hively v. Ivy Tech), and the Eleventh Circuit (Evans v. Georgia Regional Hospital).The Essay argues against the position taken by one member of the Eleventh Circuit panel that, for Title VII’s purposes, sexual orientation as a status is severable from individuals’ same-sex attractions. The piece examines why this status-conduct dichotomy theory is both inconsistent with Supreme Court gay rights precedents and Title VII’s protections against racial and religious discrimination. Concluding that this fringe theory is both radical and unworkable, the Essay urges courts to reject it
ERISA Remedies: Rethinking Indemnification and Contribution for Co-Fiduciaries
Get PDFThe Employee Retirement Income Security Act ( ERISA ) is a federal law that protects participants of employee benefit plans. Congress attempted to achieve this by assigning duties to co-fiduciaries that are responsible for managing plan assets. Despite allocating a variety of obligations among co-fiduciaries, ERISA does not specify whether co-fiduciaries can seek contribution or indemnification as an equitable remedy. To date, the circuit courts are split as to whether such equitable remedies should be implied under ERISA.
In Chesemore v. Fenkell, the Seventh Circuit incorrectly held that ERISA authorized the district court to provide contribution or indemnification to co-fiduciaries. The statute\u27s express language makes it abundantly clear that Congress was not concerned about remedying co-fiduciaries. Moreover, implying such rights under ERISA will only increase the cost of litigation without deterring liable parties. As the purpose of ERISA is geared towards deterring the mismanagement of plan assets, the Seventh Circuit failed to incorporate ERISA\u27s legislative history and the applicable federal common law.
Vol. 34, No. 2
Get PDFContents:
LGBT Rights: Gender Identity and Sexual Orientation in the Workplace, by Taylor E. Muzzy
Recent Developmentshttps://scholarship.kentlaw.iit.edu/iperr/1082/thumbnail.jp
Rights of Custody: Results May Vary
Get PDFThe Hague Convention on the Civil Aspects of International Child Abduction (Convention) protects parents with primary custody rights from parental abduction or retention of their children in another country. However, as more couples in the United States forgo marriage but continue having children, these couples-who often prefer informal parenting arrangements-do not often obtain court orders that identify their custody or visitation rights. Yet if an unmarried parent relocated to another country without the other parent\u27s consent, the parties would have to rely on the state\u27s default custody rules to determine where the custody battle should ensue.
For example, Mexican jurisdictions follow a Roman civil law tradition, patria potestas (parental authority). From birth or voluntary acknowledgement of paternity, parental authority gives both parents the right to care and control their children and their children\u27s property. However, in most United States jurisdictions, custody rights do not arise automatically simply because a child was born to unmarried parents. Instead, voluntary acknowledgment of paternity serves as a basis from which a parent can seek the court\u27s determination of custody in the child\u27s best interests.
These differences in approaches to child custody appeared in two recent Convention cases in the Seventh Circuit. In both Garcia v. Pinelo and Martinez v. Cahue, the unmarried fathers voluntarily acknowledged paternity of their children. In Garcia, the Seventh Circuit found that the unmarried father, who resided in Mexico, had a right of custody under the Convention pursuant to the Mexican laws of parental authority. In contrast, in Martinez, the Seventh Circuit found that Illinois law presumes, in the absence of a court order, an unmarried mother has sole custody of her child. Therefore, the unmarried father in Martinez, who did not obtain a custody order before the mother moved to Mexico, did not have any rights of custody under the Convention, despite having acknowledged paternity.
In light of demographic trends towards fewer marriages and more informal parenting arrangements, should jurisdictions like Illinois adopt child custody rules that endow rights of custody to both parents at birth or upon acknowledgement of the child? In order to protect children\u27s best interests and to preserve the status quo before an alleged wrongful retention or abduction, Illinois should not adopt a rule like parental authority laws. While as a society we may want parents to share significant decision-making and to cooperate regarding their children\u27s upbringing, default rules regarding children should protect children\u27s best interests rather than parental rights. Illinois\u27s presumption requires a court to consider the children\u27s best interests before awarding custody and visitation rights while parental authority laws automatically confer decision-making authority to parents. Children\u27s best interests are better served when a court protects stability and the status quo in children\u27s lives rather than enabling a parent to assert parental rights for the first time under a Hague Convention petition