Faculty Bibliography
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Catharine A. MacKinnon, The Logic of Experience: Reflections on the Development of Sexual Harassment Law, 90 Geo. L.J. 813 (2002).
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This essay is part of a continuing research agenda proposing different approaches to the puzzle of why the overall employment rate of working-age individuals with disabilities has not increased since Title I's passage. After introducing the broad subject matter, Part II explicates and critiques studies asserting that employers can accommodate workers with disabilities inexpensively, and perhaps enjoy economic benefits as a result. Part III presents and evaluates the primary econometric investigations which find that the relative disabled employment rate has declined since the ADA's passage while wages have remained stable or improved. Both Parts II and III conclude that neither the conclusions reached by these studies, nor my ensuing critiques, are dispositive in the absence of additional empirical evidence. Lacking categorical evidence, Part IV operates from an interim working assumption that the studies examined in Parts II and III are correct. Consequently, it addresses the implications of each set of findings. Part IV(A) suggests that the accommodation cost studies, which appraise the utility of providing outlays, can be helpful in recalibrating the metric by which the economic efficiency of employees with disabilities is measured. This analysis will not result in all accommodations being seen as economically net-productive. Considering the impact of these benefits will, however, render a more balanced and appropriate calculus. Part IV(B) explores the attendant policy implications that can be addressed in light of assessments finding that Title I is causing a decline in workers with disabilities' relative employment levels. Part IV(B) asserts that continuing the status quo, eliminating the ADA, or replacing the statute completely with tax-and-spend subsidies all fail as viable options. Rather, subsidies should supplement the input costs of accommodations exceeding the reach of Title I's undue hardship standard. Finally, Part IV(C) suggests that future research assessing post-ADA employment effects can be enriched by exploring models of workforce participation outside the traditionally utilized labor market paradigm. Investigators should examine the influence that extra-legal (or "environmental") factors, such as the availability of health care insurance, have upon employment effects. They should also explore alternative metrics for success, for example the nontraditional employment experiences of entrepreneurs with disabilities.
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This Article compares current disability jurisprudence with the development of sex equality jurisprudence in the area of discrimination. It demonstrates that current disability law resembles the abandoned, sexist framework for determining sex equality and argues that disability equality cases should receive similar analysis as the more progressive, current sex equality standard. As such, the Article attempts to synthesize case law (14th Amendment Equal Protection jurisprudence) and statutory law (Title VII and the ADA) into a comprehensive overview of the state of current disability law viewed within the context of discrimination law in general.
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In this book the expansion of human right legislation in national and international law is examined from theoretical and comparative perspectives.
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Human rights concerns over cultural practices like female genital cutting and arranged marriages extend to female children, and sometimes to all children, but the examples that recur involve the bodies and social roles of women and girls. Minow explores these issues and argues that the central focus should be the children as opposed to the women. Reprinted as a chapter in: Engaging Cultural Differences: The Multicultural Challenge in Liberal Democracies (Richard Shweder, Martha Minow & Hazel Rose Markus eds., Russell Sage Found. 2002).
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Empirical studies of post-ADA employment effects foreground a phenomenon that is puzzling. Although analyses suggest that employing workers with disabilities can be cost effective, and despite a burgeoning economy in which the unemployment rate for most categories of workers has plummeted, unemployment of working age individuals with disabilities appears not to have similarly diminished. From the point of view defined by scholars applying the neoclassical labor market paradigm to Title I, the clearest explanation of this phenomenon would seem to be that the studies reporting the cost effectiveness of employing the disabled are incorrect (even if only overstated). Following from this explication is the conclusion that selecting workers with disabilities over nondisabled workers is an inefficient practice. In what follows, I examine and assess the arguments made by proponents of the view that the inefficiency of employing workers with disabilities is a deterrent to their inclusion in the labor market. If these arguments are sound, then rational market forces appear to be inexorably at work to attenuate the strategy embodied by Title I of the ADA. To the contrary, however, I will identify a market failure that prevents certain employers from reaching rational labor market decisions by creating a "taste for discrimination" in which the costs of including people with disabilities in a workforce are perceived as being greater than they really are. Further, I will propose an improved manner for assessing the efficiency of employing workers with disabilities and consider what this method implies regarding the rationality of Title I's strategy. Finally, I will show that the failure of the existing neoclassical economic model, as well as the Title I critiques that rely on it, is attributable at least in part to societal misconceptions about people with disabilities being built into the model's assumptions. That is, far from being neutral or objective, these critiques sanction and perpetuate the very irrational biases the ADA was designed to correct.
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Barron challenges the court-centered approach to the scope of the President's non-enforcement power. He contends that a President, notwithstanding that he considers himself bound by the Supreme Court's constitutional interpretations, should resolve three distinct questions in determining whether he may faithfully decline to enforce a statute by virtue of its unconstitutionality.
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Catharine A. MacKinnon, Disputing Male Sovereignty: On United States v. Morrison, 114 Harv. L. Rev. 135 (2000).
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A version of this article was delivered as the Robert L. Levin Distinguished Lecture at Fordham Law School on April 22, 1999.
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Todd D. Rakoff, Contemporary Challenges Facing the First Amendment's Religion Clauses, Introduction, 43 N.Y.L. Sch. L. Rev. 101 (1999).
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Todd D. Rakoff, The Tasks of Legal Education, Law Times of Korea, May 18, 1998.
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This book covers the hearings in Minneapolis, Indianapolis, Los Angeles, and Massachusetts.
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When the person-in-the-street thinks of "The Law," she (or he) tends to think of a body of standards of conduct - rules or authoritative precedents - that prohibit this and permit that. When a lawyer thinks of "The Law," however, she (or he) thinks not only of a body of standards of conduct but also of a collection of processes through which those standards are created and applied. These processes are defined in the same way as the rules governing conduct: by legislation, by rule makers acting under delegated authority, by court decisions, and sometimes by constitutions. Some of these stipulated processes consist of details - which court, among all those that have jurisdiction, is the one with proper venue for this particular case? - and some of them embrace very large issues - do the courts as a whole have power over this particular subject, or is it a matter that belongs instead to the legislature?
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What do lawyers do? In terms of process, they negotiate, litigate, advise clients, and so forth. In terms of product, they draft contracts, write briefs, compose letters, and so on. But behind both process and product, what lawyers most fundamentally do, is think.
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MacKinnon contends that pornography, racial and sexual harassment, and racial hate speech are acts of intimidation, subordination, terrorism, and discrimination, and should be legally treated as such.
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Article was presented as the Keynote Speech at, "Looking Back, Looking Ahead: The Evolution of Children's Right," a national conference held at Temple University School of Law (September 1995).
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This article analyzes the role of hearsay in criminal justice proceedings and advocates for the court to adopt an active role in controlling the introduction of hearsay, to ensure that only credible hearsay is admitted into evidence. It considers the impact that hearsay has on the defendant’s constitutional right of confrontation, discussing in what circumstances corroboration and testing will allow the defendant’s rights and societal needs of justice and fairness to be satisfied.
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The development and use of contracts of adhesion represents one facet of the domination of the modern economy by business organizations. Firms create standard form contracts in part to stabilize their external market relationships, and in part to serve the needs of a hierarchical and internally segmented structure. Adherents' responses to contracts of adhesion are intelligible only within this institutional context. Each dimension of the problem will be examined in turn.
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This collection of essays brings together the work of many of the world's leading Contract Law scholars. It focuses upon a common central theme: the question of good faith and fair dealing in the Law of Contract. The work discusses the requirement of good faith and its role in the formation of contracts, contractual obligations, and Breach of Contract and Remedial Issues.
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Catharine A. MacKinnon, Pornography Left and Right, 30 Harv. C.R.-C.L. L. Rev. 143 (1995).
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Catharine A. MacKinnon, Vindication and Resistance: A Response to the Carnegie Mellon Study of Pornography in Cyberspace, 83 Geo. L.J. 1959 (1995).
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Todd D. Rakoff, Washington v. Davis and the Objective Theory of Contracts, 29 Harv. C.R.-C.L. L. Rev. 63 (1994).
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Todd D. Rakoff, Social Structure, Legal Structure, and Default Rules: A Comment, 3 S. Cal. Interdisc. L.J. 19 (1993).
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Catharine A. MacKinnon, Feminist Approaches to Sexual Assault in Canada and the United States - A Brief Retrospective, in Challenging Times: The Women's Movement in Canada and the United States (Constance Backhouse & David H. Flaherty eds., 1992).
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Todd D. Rakoff, The Shape of the Law in the American Administrative State, 11 Tel-Aviv U. Stud. L. 9 (1992).
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Catharine A. MacKinnon, Pornography as Defamation and Discrimination, 71 B.U. L. Rev. 793 (1991).
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