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Volume 66, Issue 6


The Civil Rights Act at Fifty

Past, Present, Future
by  David Freeman Engstrom

The Civil Rights Act of 1964 stands as one of the great legislative milestones of the twentieth century. Its mandates reach, for good or ill, into wide swathes of American social and economic life. It has spawned a raft of similar legislation, both here and abroad. And it has long sat at the center of…


The Unrelenting Libertarian Challenge to Public Accommodations Law

by  Samuel R. Bagenstos

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in places of public accommodation, was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest…


Public Accommodations Under the Civil Rights Act of 1964

Why Freedom of Association Counts as a Human Right
by  Richard A. Epstein

On its fiftieth anniversary, Title II of the Civil Rights Act of 1964 enjoys widespread social support on all sides of the political spectrum. That support is fully deserved to the extent that the nondiscrimination in public accommodations provisions offset the monopoly power of common carriers and public utilities, or neutralize the abusive application of…


Lawyering That Has No Name

Title VI and the Meaning of Private Enforcement
by  Olatunde C.A. Johnson

On the occasion of the fiftieth anniversary of the Civil Rights Act of 1964, this Essay examines the problem of private enforcement of Title VI. The Essay reviews the unduly constrained approach to private enforcement taken by courts in prominent decisions such as Regents of the University of California v. Bakke and Alexander v. Sandoval.…


Legal Protections for the “Personal Best” of Each Employee

Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA
by  Mary Anne Case

One of my aims in this Essay is to examine ways in which employment discrimination law can best facilitate what would indeed be each employee’s personal best, regardless of sex, gender, or orientation. Among the potential vehicles currently before Congress is the Employment Non-Discrimination Act (ENDA), which would explicitly offer employees some protection from discrimination…


Bias in the Air

Rethinking Employment Discrimination Law
by  Richard Thompson Ford

Employment discrimination jurisprudence assumes that key concepts such as “discrimination,” “intent,” “causation,” and the various prohibited grounds of discrimination refer to discrete and objectively verifiable phenomena or facts. I argue that all of these concepts are not just poorly or ambiguously defined; most are not capable of precise definition. Drawing on familiar developments in private…


Articulating a “Rational Connection” Requirement in Article III Standing

by  John S. Haddock

On the last day of the 2011 Term, the Supreme Court dismissed, as improvidently granted, the writ of certiorari in First American Financial Corp. v. Edwards. The dismissal, seven months after oral argument, was an unusual outcome for a case many expected to be the “sleeper” of the Term. At issue before the Court was…


Communicating with Vegetative State Patients

The Role of Neuroimaging in American Disability Law
by  Dalia B. Taylor

Patients in vegetative states appear to be awake but unconscious. If they have been in a vegetative state for more than one year, they have little chance of ever recovering. Additionally, no one can communicate with them, including physicians, loved ones, and families. However, new scientific evidence has challenged our understanding of this bleak reality.…