George Rutherglen

From Race to Age: The Expanding Scope of Employment Discrimination Law

The Age Discrimination in Employment Act (ADEA) goes beyond the model of racial discrimination in prohibiting discrimination on a ground not recognized in the Constitution. As a consequence, the individuals protected by the ADEA differ sharply from those protected by earlier statutes such as Title VII of the Civil Rights Act of 1964. An examination of empirical data reveals that claims under the ADEA are brought predominantly by white males who hold relatively high-status and high-paying jobs. These claims mainly allege discriminatory discharge and result in recovery of money judgments several times higher than other claims of employment discrimination. As a whole, claims under the ADEA more closely resemble claims for wrongful discharge than other claims of employment discrimination. It follows that the ADEA cannot be justified, either doctrinally or empirically, because it protects a disfavored and relatively powerless minority group from discrimination.

International Shoe and the Legacy of Legal Realism

The modern law of personal jurisdiction owes its existence, and most of its structure and detail, to Chief Justice Stones magisterial opinion in International Shoe v. Washington. It does not, however, owe its legal rules to this opinion, because Chief Justice Stone set out systematically to discredit most of the rules that had previously restricted the exercise of personal jurisdiction. In this effort, he succeeded beyond his wildest dreams - or, perhaps more accurately, his worst nightmares. The law of personal jurisdiction, and of such related fields as venue and choice of law, has been swept clear of nearly all rules, at least those that can be applied in a more or less determinate fashion, yielding all-or-nothing results. Rules in this sense have been in a steady retreat since the decision in International Shoe, and not just with respect to the constitutional issues addressed in that case. State statutes on the exercise of personal jurisdiction have generally been interpreted to reach to the constitutional limits, or at least to approach them. Venue rules often are so generous in identifying a proper forum that they provide only a preliminary to the case-by-case application of transfer statutes and the judge-made doctrine of forum non conveniens. And choice of law, at least at the constitutional level and in states that have abandoned the first Restatement of Conflict of Laws, has abandoned all but the most lenient restrictions on a states ability to choose its own law to govern a case. Not all of these developments followed International Shoe. Some preceded it, such as the constitutional decisions on conflict of laws. But none are so well known and or so clearly changed our understanding of the limits on state power over civil litigation. One reason for the profound influence of International Shoes results from its origins in Legal Realism, which are documented in this article through the strong professional ties and continuing correspondence between Chief Justice Stone and Walter Wheeler Cook, the leading exponent of Legal Realism as applied to issues of jurisdiction and choice of law. Moreover, the opinion itself soon became the foundation for a jurisdictional theory hostile to legal rules. It made the criticism of legal rules far easier than the task of formulating and defending them, resulting in a systematic bias of modern jurisdictional analysis towards open-ended standards applied on the facts of each case. This article analyzes these developments and suggests how they might be overcome in formulating rules of personal jurisdiction, particularly on the basis of proposed international conventions and comparative analysis of the law of other countries.

Civil rights in the shadow of slavery : the constitution, common law, and the Civil Rights Act of 1866

Chapter 1: The Birth of Civil Rights: The Circumstances, Acts, and Legacy of the 39th Congress Chapter 2: Citizenship, Slavery, and the Constitutional Origins of the Act Chapter 3: Reconceiving Civil Rights: The Passage and Structure of the Act Chapter 4: The High Tide of Reconstruction: The Fourteenth Amendment and Later Legislation Chapter 5: Restrictive Interpretations and the End of Reconstruction Chapter 6: The Verdict of Quiescent Years: Aliens, Property, and State Action Chapter 7: Resurrecting Civil Rights: Reading an Old Act for a New Era Chapter 8: Reaffirming the Revived Act: Extension, Reconsideration, and Recodification Chapter 9: Discerning the Future from the Past: The Contemporary Significance of the Act Selected Statutes