Tagged: 115 year pattern and practice of employment discrimination

footnote 94

See, e.g., Faigman et al.,  supra  note 84, at 1399 (noting that the Court “has never held that only consciously held and explicit motives qualify under the applicable law” and that “[e]specially in light of the science, such a construction seems particularly crabbed and artificial”); Wax, supra  note 64, at 985 (stating that “what really matters, and what ought to matter, is whether people are treated worse because of their race — or other protected characteristic, such as sex — in the real world. Specifically, the focus should not be on attitudes or sympathies, but on…actionable discrimination…[D]iscrimination occurs when an individual is victimized by ill treatment that is causally linked to or based on a protected characteristic.”); Zatz,  supra  note 71,  at 1374-75 (stating that ― “[s]cholars agree that the causal definition best captures the doctrinal category of ‘disparate treatment‘”).

Source: Tristin K. Green. The Future of Systemic Disparate Treatment Law pg. 24, footnote 94. 2011.

spending the day reading about the “political question doctrine.”

The political question doctrine stems from the concept of separation of powers between the three branches of government. Courts invoke the doctrine to avoid deciding a case on the merits if it raises issues that could be better resolved through political processes, or where a judicial decision would infringe upon powers that the Constitution commits to the other branches of government.

The exact parameters of the politicalquestiondoctrine are uncertain, as two schools of thought have presented competing interpretations of the doctrine’s breadth and scope. The classical approach to the politicalquestiondoctrine has focused on textual interpretations of constitutional provisions that grant specific powers to the executive or legislative branches. According to the classical approach, courts should decline to adjudicate claims based on the politicalquestiondoctrine only if the Constitution grants one of the political branches the authority to resolve the issue. Over time, though, courts incorporated prudential considerations about the effects of judicial jurisdiction into their analyses of the politicalquestiondoctrine. This meant that rather than restricting their inquiry to the text of the Constitution, courts also considered the practical ramifications of deciding to hear a case. Other courts have eschewed textual analysis completely and relied solely on prudential concerns to find cases nonjusticiable.

Advocates of the prudential approach argue that courts should avoid “rampant activism” and maintain their legitimacy by declining to adjudicate controversial claims on their merits. Proponents of the classical approach, on the other hand, argue that courts must fulfill their constitutionally mandated obligations to adjudicate cases and should therefore abstain from cases only when the Constitution has committed resolution of the issue to another branch. They contend that the prudential approach could be subject to abuse and that courts might decline to adjudicate cases simply because of their potential for controversy or complex subject matter. The tension between the classical and prudential approaches and the lack of clear standards for courts to determine whether claims raise political questions have led to scholarly critiques of the political question doctrine as ill defined and poorly conceived.

Source: Sarah Willig. Politics As Usual? The Political Question Doctrine In Holocaust Restitution Litigation. 32 Cardozo L. Rev. 723, 727-729. 2010.