662 research outputs found
As Equal as Others? Rethinking Access to Discrimination Law
No full textThe purpose of employment discrimination law is to ensure fair and equal conditions in the workplace by preventing and remedying differential treatment based on certain protected characteristics, such as race, sex, and age. However, the federal anti-discrimination claiming system as presently constructed cannot achieve this mandate. The current system excludes close to one-fifth of the American workforce outright, and prevents even greater numbers of individuals from seeking redress for reasons unrelated to the merits of their claims. Stringent statutory requisites as to covered employers, administrative exhaustion, and the limitations period create barriers to access that not only prevent individuals from obtaining relief but permit discrimination to persist on a systemic level, hobbling realization of the anti-discrimination mandate. Thus, there is a fundamental tension between the broad aspirations of anti-discrimination law and the narrow constraints of the claiming system intended to enforce it.
Recent scholarship in the employment discrimination area has focused upon the structure of discrimination claims, i.e., whether the required elements of proof and burden-shifting framework are effective in addressing racism, sexism and other biases in the workplace, or whether a new, more fluid schema is required to capture the complexities of modern prejudice and its many manifestations. These articles do not speak to the more fundamental question of access to employment discrimination law.
This Article argues that there are costs associated with excluding people from coverage, including significantly diminishing the ability of discrimination law to eliminate discrimination. The Article shows how most of the arguments used for limiting the reach of employment law have never been substantiated, have been diminished by changing circumstances, or can be alleviated by altering the statutory regimes in important ways.
This Article breaks new ground by identifying the conflict between the broad goals of employment discrimination law and the limited protections of the anti-discrimination claiming system, and proposing bold systemic restructuring to widen access, while taking into account countervailing concerns such as overburdening and cost. Part I examines the evolution of the federal employment statutes. Part II considers the nature of the barriers to access, their merits as well as the problems they create.
Finally, Part III re-envisions the requirements of the anti-discrimination claiming system and offers a proposal whereby: (1) all employees would be covered by the federal anti-discrimination statutes and given access to the Equal Employment Opportunity Commission, which would have adjudicative, rather than merely investigative, authority over claims; (2) individuals employed by larger companies would be permitted to opt out of the EEOC process and proceed directly to federal court; and (3) individuals bringing claims in either forum would be given a minimum two-year statute of limitations in which to do so. These reforms would better achieve the goal of anti-discrimination law by providing protection to a wider spectrum of individuals and claims, while enabling the system to operate more effectively
Nothing New Under the Sun: How the Legal Profession's Twenty-First Century Challenges Resemble Those of the Turn of the Twentieth Century
No full textThese divergent observations reflect the legal profession’s uneasy relationship with its past. Central to the work of lawyers is precedent, a form of history. But when it comes to our own history, lawyers, judges, and legal scholars tend to have short memories and to engage in what Martin Flaherty describes as “history lite.” For example, many bar leaders today refer to the “good old days” when lawyers did not advertise. In fact, John Marshall, while sitting as Chief Justice, provided a testimonial for a lawyer advertisement, attesting to his “entire confidence” in, and the “ability, integrity, and promptitude” of, attorney David Hoffman, who ironically happened to be the author of the first American code of legal ethics.
In this Essay, we take a small step toward bringing history to bear on debates regarding the legal profession today. Rather than seeking normative lessons, this Essay seeks simply to offer context for contemporary debates. In particular, we explore five crises that faced the legal profession at the turn of the twentieth century and that face the legal profession once again today. These are: (1) the debate regarding the vitality of the Business-Profession dichotomy; (2) the question of whether lawyers are responsible for encouraging business clients to pursue the public good; (3) the issue of whether lawyers should have control of the market for legal services; (4) the need to reform legal education; and (5) the management of a dramatic increase in diversity in the legal profession.
To examine these five crises, we draw upon Julius Henry Cohen’s classic work, The Law: Business or Profession? published in 1916. Cohen offers what is probably the most extensive contemporary account of the challenges facing the turn of the twentieth century legal profession. Cohen accordingly provides a historical context for the turn of the twentieth century crises that in turn illuminates the similar crises that the bar faces at the turn of the twenty-first century. By comparing Cohen’s world to our own, we hope to show how the legal profession’s responses to these dilemmas have varied over time and to suggest that today’s status quo is neither traditional nor inevitable. Indeed, challenging the legal profession’s assumptions regarding its traditions is a necessary step in refining both the descriptions of, and prescriptions for, the current crises
The Self-Assessed Writer: Harnessing Fiction Writing Processes to Understand Ourselves as Legal Writers and Maximize Legal Writing Productivity
No full text
Creighton Law Review
No full textIn March 2020, legal education and the legal profession—along with the rest of the world—were thrown into upheaval by the COVID pandemic. Attorneys were forced to suddenly rethink practice and law schools were challenged to re-envision learning in ways that have irreversibly changed both. As a result, the practice of law and the corresponding preparation of law students for it have become increasingly complex.
This article looks at the ways in which law schools can meet this new challenge by reconceptualizing the convergence between skills and professionalism. Part I assesses the role of skills and professionalism in legal education over the past several decades. Part II examines the ways in which the COVID pandemic irreversibly upended legal education, the practice of law and the lives of lawyers. Part III considers what the practice of law looks like after the pandemic and what law students will need to prepare for it. Finally, Part IV addresses how to meet the increasingly complex challenges of preparing law students for the practice of law after the pandemic by harnessing the synergies of skills and values training instead of dividing them. By reconceptualizing the two as a unified “Professional Skills and Values” curriculum, law schools can better prepare students for new realities of practice after the pandemic.121-455
Book review: A hidden affair
No full textA Hidden affair by Pam Jenoff, published by Sphere, reviewed by Gail Pittawa
Recommended from our members
The things we cherished
No full textDefending the brother of a Holocaust hero against allegations of World War II crimes, fiercely independent attorneys Charlotte Gold and Jack Harrington slowly fall for one another, while their client refuses to help in his own defense and claims that proof of his innocence lies within an intricate clockhttps://scholarship.law.ua.edu/harper_lee_prize_books_2012/1008/thumbnail.jp
The things we cherished
No full textDefending the brother of a Holocaust hero against allegations of World War II crimes, fiercely independent attorneys Charlotte Gold and Jack Harrington slowly fall for one another, while their client refuses to help in his own defense and claims that proof of his innocence lies within an intricate clockhttps://scholarship.law.ua.edu/harper_lee_prize_books_2012/1008/thumbnail.jp
The Case for Candor: Application of the Self-Critical Analysis Privilege to Corporate Diversity Initiatives
No full textAs Equal as Others? Rethinking Access to Discrimination Law
No full textThe purpose of employment discrimination law is to ensure fair and equal conditions in the workplace by preventing and remedying differential treatment based on certain protected characteristics, such as race, sex, and age. However, the federal anti-discrimination claiming system as presently constructed cannot achieve this mandate. The current system excludes close to one-fifth of the American workforce outright, and prevents even greater numbers of individuals from seeking redress for reasons unrelated to the merits of their claims. Stringent statutory requisites as to covered employers, administrative exhaustion, and the limitations period create barriers to access that not only prevent individuals from obtaining relief but permit discrimination to persist on a systemic level, hobbling realization of the anti-discrimination mandate. Thus, there is a fundamental tension between the broad aspirations of anti-discrimination law and the narrow constraints of the claiming system intended to enforce it.
Recent scholarship in the employment discrimination area has focused upon the structure of discrimination claims, i.e., whether the required elements of proof and burden-shifting framework are effective in addressing racism, sexism and other biases in the workplace, or whether a new, more fluid schema is required to capture the complexities of modern prejudice and its many manifestations. These articles do not speak to the more fundamental question of access to employment discrimination law.
This Article argues that there are costs associated with excluding people from coverage, including significantly diminishing the ability of discrimination law to eliminate discrimination. The Article shows how most of the arguments used for limiting the reach of employment law have never been substantiated, have been diminished by changing circumstances, or can be alleviated by altering the statutory regimes in important ways.
This Article breaks new ground by identifying the conflict between the broad goals of employment discrimination law and the limited protections of the anti-discrimination claiming system, and proposing bold systemic restructuring to widen access, while taking into account countervailing concerns such as overburdening and cost. Part I examines the evolution of the federal employment statutes. Part II considers the nature of the barriers to access, their merits as well as the problems they create.
Finally, Part III re-envisions the requirements of the anti-discrimination claiming system and offers a proposal whereby: (1) all employees would be covered by the federal anti-discrimination statutes and given access to the Equal Employment Opportunity Commission, which would have adjudicative, rather than merely investigative, authority over claims; (2) individuals employed by larger companies would be permitted to opt out of the EEOC process and proceed directly to federal court; and (3) individuals bringing claims in either forum would be given a minimum two-year statute of limitations in which to do so. These reforms would better achieve the goal of anti-discrimination law by providing protection to a wider spectrum of individuals and claims, while enabling the system to operate more effectively
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