Steven Donziger, a self-styled social activist and Harvard educated lawyer, signed on to a budding class action lawsuit against multinational Texaco (which later merged with Chevron to become the third-largest corporation in America). The suit sought reparations for the Ecuadorian peasants and tribes people whose lives were affected by decades of oil production near their villages and fields. During twenty years of legal hostilities in federal courts in Manhattan and remote provincial tribunals in the Ecuadorian jungle, Mr. Donziger and Chevron’s lawyers followed fierce no-holds-barred rules. Mr. Donziger proved himself adept at influencing the media, Hollywood, and public opinion. He cajoled and coerced Ecuadorian judges on the theory that his noble ends justified any means of persuasion. And in the end, he won a $19 billion judgment against Chevon – the biggest environmental damages award in history. But the company refused to surrender or compromise. Instead, Chevron targeted Mr. Donziger personally, and its counter-attack revealed evidence of his politicking and manipulation of evidence. Suddenly the verdict, and decades of Mr. Donziger’s single-minded pursuit of the case, began to unravel.
On July 25, 2014, the Fifth Circuit Court of Appeals issued its decision in Fisher v. University of Texas at Austin, on remand from the Supreme Court of the United States. In a 2-1 decision, the panel upheld the University of Texas' affirmative action policies, "persuaded by UT-Austin ... of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race." Was this decision consistent with the Supreme Court's 7-1 decision in June 2013? What will happen going forward? Our expert answered these and other questions for a live call-in audience.
On July 21, 2014 President. Obama issued Executive Order 13672, amending EO 11246 which has been around since 1965. The new EO added sexual orientation and gender identity to the list of prohibited bases of employment discrimination by federal contractors. The order applies to all employees of a contractor, not just those working on a federal contract. It also requires the contractor to hold itself out to the public as an equal opportunity employer with respect to these newly protected classes, and to post in conspicuous places notice to employees and job applicants of its nondiscrimination duties.
Some religious organizations are federal contractors. This has long been the practice with respect to international relief efforts, as well as for services to meet the religious needs of those in prison and serving in the armed forces. Religious organizations petitioned the White House for an exemption from these new requirements. Although they did not succeed, they were able to convince President Obama to leave intact a more limited religious exception permitting religious organizations to staff on a religious basis, an exception drawn from Title VII of the 1964 Civil Rights Act.
Race-based affirmative action had been declining as a factor in university admissions even before the recent spate of related cases arrived at the Supreme Court. Since the mid-1990s, the percentage of four-year public colleges that consider racial or ethnic status in admissions has fallen from 60 percent to 35 percent. Only 45 percent of private colleges still explicitly consider race, with elite schools more likely to do so, although they too have retreated. Law school professor and civil rights activist Sheryll Cashin believes that this isn’t entirely bad news, because, as she argues, affirmative action as currently practiced does little to help disadvantaged people. The truly disadvantaged are not getting the quality schooling they need in part because backlash and wedge politics undermine any possibility for common-sense public policies. Using place instead of race in diversity programming, she writes, will better amend the structural disadvantages endured by many children of color, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders. In Place, Not Race: A New Vision of Opportunity in America, Professor Cashin reimagines affirmative action and champions place-based policies, arguing that college applicants who have thrived despite exposure to neighborhood or school poverty are deserving of special consideration.
Professor Tom W. Bell, Chapman University, Fowler School of Law, participated in a Teleforum conference call on the topic, "Copyright Originalism." Professor Bell's new book, Intellectual Privilege: Copyright, Common Law, and the Common Good, argues that copyright in the United States has mutated into something the Founders would have hardly recognized, much less approved of. He so admires their version of copyright that he convinced the Mercatus Center to publish Intellectual Privilege under what he calls the "Founders' Copyright," allowing the public to enjoy his book under terms that replicate the effect of the original Copyright Act, passed in 1790. Christopher Newman, Associate Professor of Law, George Mason University School of Law, joined to offer his comments and questions.
Emotions sometimes run high in the public debates over race and gender issues. Some claim that public passions can obscure facts and result in ill-considered policy. Many observers have bemoaned the public rhetoric surrounding the recent events in Ferguson, Missouri as more inflammatory than constructive. Another example can be found in criticism over President Obama’s use of a misleading, or at least contestable, figure in his 2014 State of the Union address: “Today, women make up about half our workforce. But they still make 77 cents for every dollar a man earns. That is wrong, and in 2014, it’s an embarrassment. A woman deserves equal pay for equal work.” But equal pay for equal work has been the law since 1963, and some researchers have questioned whether the pay gap exists in reality to the same extent it does rhetorically. Are similarly emotional arguments being used in the debates over sexual assault in the military, hate crimes, and harassment and bullying in public schools? This panel will explore the concerns over this problem and its policy consequences.
This panel on "Passion and Prudence in the Political Process: The Debate Over Federal Civil Rights Policy" was part of a day-long conference on Civil Rights in the United States held on September 9, 2014, and co-sponsored by the Federalist Society's Civil Rights Practice Group, the Cato Institute, and the Heritage Foundation.
The Mayflower Hotel