Plausibility and Disparate Impact

Joseph A. Seiner

Volume 64, Issue 2, 287-324

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court introduced a new plausibility pleading standard, abrogating well-established precedent. Under this standard, a plaintiff must now allege enough facts in the complaint to state a plausible claim to relief. Twombly and Iqbal transformed civil procedure law, and both courts and litigants have struggled with its meaning. One area that has been dramatically affected by these recent decisions is the field of workplace discrimination.

There are two types of employment discrimination claims—intentional (or disparate treatment) and unintentional (or disparate impact) discrimination. The academic scholarship is replete with discussions of the problems that the plausibility standard has created for victims alleging disparate treatment claims. Discriminatory intent is difficult to establish, and this is particularly true when a plaintiff has not had access to discovery.

One area that has remained unexplored in the academic literature, however, is the effect of Twombly and Iqbal on disparate impact cases. This Article seeks to fill that void in the scholarship. This Article closely examines the two most likely approaches for applying the plausibility standard to unintentional discrimination claims. It offers an analytical framework for considering these claims under either standard, and explains why a more streamlined approach to the Supreme Court’s recent decisions is preferable. Twombly and Iqbal represent a sea change for workplace plaintiffs, and this Article attempts — for the first time —to make sense of these decisions in one of the most complex areas of employment discrimination law.

Full Article

Safe Harbors and the National Information Infrastructure

Nicholas W. Bramble

Volume 64, Issue 2, 325-384

In 1995, the Department of Commerce under President Clinton released a 267-page document arguing that strengthened intellectual property enforcement was necessary to ensure the population of the “national information infrastructure” with education, information, and entertainment products. Contrary to the predictions and recommendations of that paper, a very different set of laws emerged over the next decade and became dominant forces in the development of the U.S. information infrastructure. These provisions—section 512 of the Digital Millennium Copyright Act, section 230 of the Communications Decency Act, and the continued potency of Sony v. Universal — generated a far more decentralized version of Clinton’s global information society, one dominated not by commercial partnerships between network providers and content owners but instead by independent information intermediaries at the edges of the network.Other scholars have explored these safe harbors separately, but this Article fills a gap in the literature by looking at the collective, systematic impact of these laws upon the growth of the Internet. In so doing, this Article places § 512 and § 230 in the context of historical governmental attempts to shape the production and distribution of information. Many scholars and advocates have resisted this move, arguing instead that these laws, along with judicial decisions such as Sony v. Universal, amount to the deregulation of the Internet and the creation of a lawless zone. But when these laws are considered together, a different picture begins to emerge: one where the government encourages the development of a “layer” of intermediaries situated between network providers (such as Comcast, AT&T, and Verizon) and content providers (such as Disney, The New York Times, and Viacom), and sets in place a legal framework that enables intermediaries to counteract the power of these network and content providers.

Safe harbors, then, serve an important and unexamined regulatory function—a regulatory function that the government likely would have been unable to implement on its own (without the cooperation of intermediaries) due to jurisdictional, constitutional, technological, and political limitations on the government’s power over Internet providers.

Full Article

The Rhetoric of Choice: Restoring Healthcare to the Abortion Right

Yvonne Lindgren

Volume 64, Issue 2, 385-423

In 1973 the Supreme Court in Roe v. Wade both identified a constitutional right of abortion and asserted that “the abortion decision in all its aspects is inherently, and primarily, a medical decision” to be made in consultation with a “responsible physician.” Since that time, the Court’s analysis has shifted away from the medical model, to identify abortion exclusively as a right of decisional autonomy. While scholarship has uniformly criticized the Roe analysis for subordinating women’s constitutional rights to the judgment of their doctors, it has left unanswered an important question: What, if anything, was lost when the Court turned from the medical model of reform toward identifying abortion as a right of decisional autonomy?In this Article I argue that a previously unrecognized benefit of the Roe Court’s analysis was that it viewed abortion as a right that was inextricably linked to healthcare. Thus, while early cases compromised a woman’s right of choice, I argue that at the same time these cases better protected effective access to abortion via healthcare. By contrast, I demonstrate that the Court’s current analysis narrowly identifies abortion exclusively as a right of choice, uncoupled from access to healthcare. This analysis increasingly isolates pregnant women as rights holders and no longer acknowledges them as medical consumers. While nominally protecting the abortion right, it has severed the access necessary to exercise the right. As a result, the right of abortion is in danger of becoming a right without a remedy. I conclude that it is critical to reclaim healthcare as an integral aspect of the abortion right while rejecting the early analysis that deferred women’s decisionmaking to doctors. This reclaimed healthcare analysis will allow the right to better withstand challenges of legislation that seeks to restrict access to abortion-related healthcare and will create broader appeal for the right by casting it in a gender-neutral context.

Full Article

Mass Incarceration at Sentencing

Anne R. Traum

Volume 64, Issue 2, 423-468

Courts can address the problem of mass incarceration at sentencing. Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform. Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales—individual, family, and community—and the power of courts to address such broad harm is limited. This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing. Sentencing is well suited to this purpose because it is a routine phase of a criminal case when courts have great flexibility to individualize punishment based on individual and systemic factors. In this phase, judicial discretion is at its highest, the judges’ contact with defendants is most direct, and the court can consider the broadest information relevant to sentencing options and impacts. Mass incarceration can be viewed as a systemic concern that is relevant to both the defendant’s history and the traditional sentencing purposes—including the need to benefit public safety and to ensure that sentences are fair and just. Information about mass incarceration would enhance courts’ understanding of the impacts of sentencing on the defendant and others in the local community. This Article articulates how this can be accomplished in federal sentencing and suggests doctrinal and practice changes that would enhance courts’ capacity to consider and mitigate the harms of mass incarceration in individual cases.

Full Article

The Death of the Public Figure Doctrine: How the Internet and the Westboro Baptist Church Spawned a Killer

Douglas B. McKechnie

Volume 64, Issue 2, 469-498

This Article suggests that the U.S. Supreme Court’s public figure/private figure dichotomy announced in Gertz v. Robert Welch, Inc. should be abandoned in light of the Internet and Supreme Court jurisprudence that predates and postdates Gertz. This Article begins by examining the Supreme Court’s decision to bring defamatory speech into the realm of First Amendment protection, the creation of different burdens of proof for defamation cases, and the struggle to create sensible doctrine. To that end, this Article explores not only Gertz, but the Court’s pre-Gertz majority and plurality opinions that articulated the contours of the First Amendment and defamation.This Article demonstrates that, while Gertz created a distinction between “public figures” and “private figures” for the purposes of determining the burden of proof in a defamation lawsuit, the reasoning behind these distinctions is no longer persuasive. I argue that, because of the Internet, public figures no longer have exclusive or considerably greater access to the channels of effective communication. I also argue that the Gertz public figure/private figure dichotomy is destined to be abrogated because of the Roberts Court’s recent First Amendment jurisprudence regarding speech on matters of public concern. I argue that the Roberts Court’s vigorous defense of speech on matters of public concern foreshadows a rejection of the Gertz Court’s view that the First Amendment analysis to apportion burdens of proof should focus on whether a plaintiff is a “public figure” or “private figure.” Instead, I argue the Roberts Court’s holdings demonstrate that the more constitutionally appropriate question, in the first instance, is whether the defendant in a defamation lawsuit was speaking on a matter of public concern.

Full Article

Note – Familial DNA Testing, House Bill 3361, and the Need for Federal Oversight

Dane C. Barca

Volume 64, Issue 2, 499-526

Recent developments in DNA testing have enabled forensic scientists to make DNA matches from crime scene samples to family members of criminals in the national DNA database. It is now possible to take a DNA sample from a crime scene, match that sample to a relative of the perpetrator within a DNA database, and locate the criminal based on this familial association. These “partial-match” searches have facilitated the apprehension of criminals that would have previously escaped detection, but these techniques also raise numerous concerns about privacy, accuracy, and the inequalities of racial representation within the national DNA database. Moreover, there exists no national consensus on the type or degree of offense for which this technology might be used.Representative Adam Schiff of Los Angeles County recently proposed legislation that would nationalize the presently state-based systems for partial-match searches. While this legislation holds the promise to expand the public awareness and debate around an existent forensic technique, the legislation must be implemented with an eye toward the increasing critical discourse surrounding the use of partial-match searches already in practice. This Note details the science behind the technique, examples in which the technique has been implemented, and the critical concerns raised by the use of this emergent forensic science. This Note analyzes Schiff’s proposed legislation in light of the critical concerns raised by legal commentators and makes practical suggestions for the implementation of partial-match DNA searches on a national scale.

Full Article

Note – Chance of Rain: Rethinking Circumstantial Evidence Jury Instructions

Eugenée M. Heeter

Volume 64, Issue 2, 527-560

The treatment of circumstantial evidence has undergone a dramatic change over time, from a high level of scrutiny to widespread acceptance. Similarly, our understanding of direct evidence has evolved, as wrongful convictions have exposed the potential unreliability of eyewitnesses and confessions. In accordance with the changing views of each type of evidence, this Note identifies two distinct policy goals of circumstantial and direct evidence jury instructions. The first is to establish an equality of import between the two types of evidence, to combat juror bias that leads to the under or overvaluing of one type over the other. The second, which seems to be in conflict with the first, is to promote a higher level of care during jury deliberations, so that jurors do not casually make incorrect or unfounded factual inferences. However, these goals can be reconciled if we acknowledge that all kinds of evidence are highly probative, and subject to similar dangers from inference. By evaluating three different states’ circumstantial and direct evidence jury instructions for comprehensibility and effective advocacy of policy goals, this Note identifies what is done well and what diminishes the efficacy of the instruction, and then offers various solutions in the form of altered instructions. Ultimately, this Note concludes that the most effective solution is to create a new instruction that combats the dangers of inference, appeals to jurors’ appreciation of a reasonable alternative narrative, and eliminates the unnecessary distinction between direct and circumstantial evidence.

Full Article