Wednesday, November 25, 2015

"The New Public Accommodations"

The title of this post comes from this intriguing article by Professor Nancy Leong, the abstract of which states:

The rise of the sharing economy raises important new questions about public accommodations law. Some have argued that the sharing economy has the power to reduce or even eliminate discrimination on the basis of race in traditional public accommodations such as housing rental, transportation, and commerce.

Are these optimists correct? Is discrimination a problem in the new economy? If discrimination is not a problem in the new economy, why is the new economy different from the old economy? If discrimination remains a problem in the new economy, what form does such discrimination take? And what legal mechanisms can we use to address it?

In this Article, I argue that the new economy has not solved race discrimination in public accommodations, and, indeed, that it has raised new concerns that civil rights law must evolve to address. Most obviously, the online platforms that form the basis of many sharing economy businesses often make race salient to both parties to a transaction, which facilitates discrimination without the parties ever coming face to face with one another. Such discrimination may be rooted in either conscious or unconscious bias. Available evidence suggests that this relatively traditional form of discrimination affects the sharing economy to the same extent it affects the traditional economy.

Perhaps more troublingly, the sharing economy also facilitates new forms of discrimination by aggregating the experiences of many economy participants over time. Businesses such as Uber and AirBnb allow service providers (drivers; landlords) to rate service users (passengers; renters). Over time, these ratings aggregate the preferences of many service providers, and to the extent that the service providers are consciously or unconsciously biased, members of disfavored racial categories will gradually average lower ratings than their more favored peers. On the basis of this seemingly objective rating, service users who are members of disfavored racial categories may begin to receive worse service, or, eventually, to be denied service altogether.

The Article proceeds in four parts. Part I traces the history of public accommodations law, from its contested early roots to the Civil Rights Act of 1964 to its uneasy status today. Part II turns to the new economy. It describes the features of that economy, explains the hopes of some that the new economy offers a solution to racial discrimination in public accommodations, and then offers evidence suggesting that such hopes are unfounded. Part III considers available legal mechanisms to combat discrimination in the sharing economy. While such mechanisms offer considerable promise in many situations, they ultimately fail to address completely the unique way in which discrimination operates in the sharing economy. Part IV, then, calls for new antidiscrimination laws to take account of the unique features of the new economy, and briefly describes the form such laws should take.

November 25, 2015 in Civil Rights Act | Permalink | Comments (0)

"We simply are not charging people with the death penalty like we once did...''

...according to one expert interviewed by The Cleveland Plain Dealer for this report on prosecutors seemingly diminished interest in pursuing the death penalty. The report begins: 

Death-penaltyProsecutors across Ohio are changing the way they charge suspected killers. They are indicting far fewer with the death penalty and pushing more sentences of life in prison without parole.


The number of capital murder indictments filed across the state since 2010 has plummeted by 77 percent, as just 19 have been brought this year.


During the same time period, the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.


The Ohio numbers mirror a national trend involving the death penalty. Legal experts cited the high costs of taking a capital case to trial. They also said decades of appeals make the death penalty extremely burdensome on the criminal justice system and traumatic for victims' families.

November 25, 2015 in Theories of Punishment | Permalink | Comments (0)

"9 reasons the death penalty is on the decline in America"

The death penalty is on the decline in America. Executions hit a 20-year low in 2014, and most recently, Nebraska became the first conservative state in 40 years to repeal capital punishment. Several other states, from Pennsylvania to Colorado, have put executions on hold. There are several reasons states are doing this — starting with popular opinion.

November 25, 2015 | Permalink | Comments (0)

Dallas County DA seeks to provide mentally ill offenders with alternatives to incarceration

Tuesday, November 24, 2015

"EEOC v. Abercrombie & Fitch Stores, Inc.: Mistakes, Same-Sex Marriage, and Unintended Consequences"

The title of this post comes from this recent paper by Professor Jeffrey Hirsch, the abstract of which states:

In EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court held that a job applicant need not notify an employer of a needed religious accommodation in order to bring a claim of religious discrimination under Title VII of the Civil Rights Act. The decision has been heralded as a victory for religious employees and job applicants. Although Abercrombie is certainly a victory for many of these individuals, it is not clear that the decision will always be beneficial to religious employees. Indeed, while the decision enhanced protections for job applicants with clear religious accommodation it may have inadvertently penalized a different class of religious job applicants — those who convey only subtle signs of religious belief.

November 24, 2015 in Civil Rights Act, Freedom of Religion, Same-sex marriage | Permalink | Comments (0)

U.S. Commission on Civil Rights files statement supporting UT-Austin's affirmative action program

Soon, SCOTUS will hear oral arguments in Fisher v . University of Texas at Austin II over whether the University of Texas's admission plan is constitutional. Texas residents who finished in the top 10% of their high school class are admitted automatically. This accounts for 80% of admissions. For the remaining 20% of applicants, the university uses a long list of factors in making a determination, one of which is race. Proponents claim that UT's policy is necessary to achieve the legitimate aim of promoting institutional diversity. Opponents, however, allege that it violates the Equal Protection Clause of the DownloadFourteenth Amendment arguing that the goal of diversity can be achieved without taking race into account, and by using race, UT is unfairly advantaging minority students. 

Today, the U.S. Commission on Civil Rights announced its support for UT's policy. The commission states in part: 

The U.S. Commission on Civil Rights believes that the University’s admissions policy is indeed narrowly tailored to serve the compelling interest of securing the educational benefits of a diverse student body. Accordingly, the 5th Circuit’s determination that the University’s admissions process does not violate the Fourteenth Amendment should be affirmed...


Throughout its history, the Commission has expressed its strong belief in the benefits of diversity in educational settings. In our 1975 report Twenty Years After Brown: Equality of Educational Opportunity, the Commission found it appropriate “to provide the equal educational opportunity that segregation inherently denies and to permit all pupils to develop the understanding and appreciation of each other that inevitably will result in a more equitable society for all Americans.”...


A ruling further restricting the admissions process or eliminating the consideration of race altogether will diminish the vibrant university learning experience. It will have grave consequences for many schools across the nation and students of all backgrounds. The constitutional validity and educational benefits of the University’s admissions process are clear. The Commission supports the University of Texas in this case and encourages the Supreme Court to uphold the University’s admissions process.

The commission's entire statement can be read here.

SCOTUS will hear oral arguments on December 9, 2015.

November 24, 2015 in Affirmative Action, Equal Protection Clause, Universities and Colleges | Permalink | Comments (0)

Wednesday, November 18, 2015

Death row inmate's attorneys say they'll do no more to try to stop upcoming execution

Yesterday, noting this Dallas Morning News article on his blog Sentencing Law and Policy, Professor Douglas Berman asked whether it's appropriate for lawyers to cease representing a death row client because existing "political realities" make a stay of execution extremely unlikely. The Fifth Circuit didn't see a problem with it, but final resolution of the question remains in SCOTUS's hands.

Here are the basics:

From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.


Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it. The 36-year-old thought he’d be left to walk to the death chamber with no lawyer at his side.


Less than a month before his execution — scheduled for Wednesday — Holiday secured help. Austin attorney Gretchen Sween agreed to ask the court to find new lawyers willing to try to keep him from dying.


But Holiday’s federally appointed lawyers — the ones who said they would do no more to help him — are opposing their client’s attempts to replace them.


Now, just hours before he is set to face lethal injection for burning to death three children, including his own daughter, Holiday is awaiting word from the U.S. Supreme Court on his latest request for help.

UPDATE: A state judge stayed Holiday's execution earlier today citing unresolved legal issues, according to this Reuter's report, which states:

A Texas district judge on Wednesday halted the execution of a 36-year-old man, hours before he was due to be put to death by lethal injection for killing his daughter and two stepdaughters in a mobile home blaze in 2000.


The Texas Attorney General's office appealed, trying to win a ruling that would allow the execution of Raphael Holiday to proceed. It had been planned for 6 p.m. at the state's death chamber in Huntsville.


"The main factors for the decision were some additional issues under the law that had not been addressed previously," Madison County district Judge Hal Ridley told Reuters by telephone.


One of those items was testimony allowed in previous trials that may not be admissible under current standards, he said.

November 18, 2015 in Prisons and Prisoners | Permalink | Comments (0)

"Pastafarian Gets to Wear Strainer on Head in License Photo"

When I opened this article from a NBC-local in the San Fran area, I definitely immediately thought, "Of course you would, San Francisco." But, then I read on:

Pastafarian_seal_square_stickerA Massachusetts agency is letting a woman who belongs to the Church of the Flying Spaghetti Monster wear a colander on her head in her driver's license photo after she cited her religious beliefs.


Lowell resident Lindsay Miller said Friday that she "absolutely loves the history and the story" of Pastafarians, whose website says had existed in secrecy for hundreds of years and entered the mainstream in 2005.


Miller says wearing the spaghetti strainer allows her to express her beliefs, like other religions are allowed to do.


A spokesman for the Massachusetts Registry of Motor Vehicles says policy does not permit head coverings or hats on license photos, but exceptions are made for religious reasons.

So, the Massachusetts RMV is all in for protecting religious liberty, and I apologize to the good citizens of San Fran.

November 18, 2015 | Permalink | Comments (0)

"What’s the Evidence Mass Surveillance Works? Not Much"

...reads the title of this recent ProPublica article by Lauren Kirchner. Responding to recent calls for increased mass surveillance since the terror attacks in Paris (e.g., here), she lays out reasons to be skeptical about the effectiveness of mass surveillance in the first place.

November 18, 2015 in Fourth Amendment | Permalink | Comments (0)