Faculty Scholarship Digest

October 2010

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.

Book Chapter

Martha  Chamallas

Martha M. Chamallas, Of Glass Ceilings, Sex Stereotypes, and Mixed Motives: The Story of Price Waterhouse v. Hopkins, in WOMEN AND THE LAW STORIES (Foundation 2010).

Martha becomes the latest Moritz faculty member to participate in this outstanding Foundation series that addresses fields of law by assigning classic cases to leading scholars for both the human story behind the case and as a jumping off point for the author’s particular perspective. Price Waterhouse’s “compelling narrative [of a woman] who struggles to advance in [a] male-dominated profession[],” is set in the early 1980's, when a highly credentialed Ann Hopkins failed to become the 8th woman partner out of the 662 partners at an elite accounting firm, at least in part because she failed to conform to sex stereotypes (she was told by the head of her office that, to make partner, she should “walk more femininely, talk more femininely, [and] dress more femininely . . .”). The chapter describes Hopkins’ courtroom victories, from the trial level through the Supreme Court, and their considerable, and remarkably distinct, influences.

Martha describes how, from the beginning, Price Waterhouse was significant, both for and beyond its “glass ceiling” context. Price Waterhouse endorsed a “mixed-motivation” framework in Title VII cases that allowed plaintiffs to go forward by proving that discrimination played a role in a challenged employer action, and Congress shortly thereafter endorsed this approach (essentially, Congress gave “plaintiffs such as Ann Hopkins . . . a legally enforceable right to a discrimination-free decision-making process”). Martha characterizes these mixed-motivation developments as “one of the most important developments in Title VII doctrine since the 1970's,” with ongoing and expanding reverberations. Price Waterhouse also influenced the debate as to whether “intentional” (as opposed to unconscious) bias must be proven in disparate treatment cases, was an important landmark for the use of expert testimony in Title VII cases, and most recently has been “keenly felt in harassment cases and begun to transform the meaning of ‘sex discrimination’ under Title VII.” With regard to the last of these, Price Waterhouse’s so-called “sexual stereotyping theory of liability,” has proven the key element in leading courts to find liability in cases related to sexual orientation and gender identity, in short form because “if Ann Hopkins could not be penalized for being too masculine, it was unlawful to penalize a male employee because he was too effeminate or because his co-workers thought he was gay.” In a final section, Martha discusses the influence of Price Waterhouse in feminist theory, beyond the legal system. It is highly relevant to both “structuralist” research, which examines how organizational features (e.g., promotion practices) can reinforce or disrupt “sex role traditionalism,” and post-modern feminism, which considers gender as socially constructed and challenges the “binary view of gender.”

Book Supplements

Ellen E. Deason (w/John T. Cross and Leslie W. Abramson), 2010 SUPPLEMENT TO CIVIL PROCEDURE, CASES, PROBLEMS AND EXERCISES (2d ed. West).

This casebook supplement now runs nearly 400 pages and keeps the casebook current with regard to cases, rules and commentaries, including the Supreme Court’s 2010 decision in Hertz v. Friend in which the Court attempted to resolve confusion among the lower courts regarding the test for determining the state of a corporation’s citizenship for diversity jurisdiction purposes, and Shady Grove Orthopedic Associates v. Allstate Insurance, in which the Court addressed the applicability of Federal Rule 23 (regarding class actions) in a diversity jurisdiction action in federal court, as well as the standard for determining whether a federal rule is procedural for Erie purposes.

Joshua Dressler & Alan C. Michaels, 2010 SUPPLEMENT TO 2 UNDERSTANDING CRIMINAL PROCEDURE: ADJUDICATION (4th ed. Lexis/Nexis).

This supplement brings the second volume of Joshua and Alan’s treatise up to date (the first volume is in the fifth edition 2010). Important cases from last year’s Supreme Court docket receiving coverage include Padilla v. Kentucky, addressing standards regarding effective assistance of counsel in the guilty plea context, McDonald v. Chicago, the Court’s new incorporation case regarding the 2nd Amendment which failed to produce a majority opinion, and United States v. O’Brien, in which the Court side-stepped reconsideration of the constitutionality of mandatory minimum sentences based on judicial findings. Justices Stevens and Thomas concurred in the result and would have overruled the precedents approving such sentencing schemes, “but the other seven Justices were scrupulously silent on [the precedents’] continued vitality.”

Daniel P. Tokaji (w/Richard L. Hasen & Daniel Hays Lowenstein), 2010 SUPPLEMENT TO ELECTION LAW CASES AND MATERIALS (4th ed. Carolina Acad. Press).

In this latest supplement to their leading casebook, Dan and his coauthors grapple with the blockbuster decision in Citizens United v. FEC, which takes up nearly a third of the supplement in this very active area of law, and also cover Doe v. Reed, in which the Court nearly unanimously upheld as a general matter a state law requiring disclosure of information about signatories of petitions to get certain issues on the ballot, but through an array of concurring opinions, expressed very different views regarding when an “as applied” challenge to such a law should succeed.