3 The Ohio State Law Journal Presents:
Torts and Civil Rights Law: Migration and Conflict Friday, November 15, 2013 The Ohio State University Moritz College of Law 55 W. 12th Ave. Columbus, OH 43210
3 The Ohio State Law Journal Presents:
Torts and Civil Rights Law:
Migration and Conflict
y Increasingly, courts and commentators have labeled federal statutory antidiscrimination claims “torts” or “tort-like” claims, without thoroughly discussing the implications of this classification. Particularly since the U.S. Supreme Court’s 2011 ruling applying the controversial concept of “proximate cause” to a claim of employment discrimination, the lower courts have stepped up their efforts to reshape a number of anti-discrimination doctrines to align with general tort concepts, often with the effect of limiting the scope of statutory civil rights protection. Thus, tort law is playing a more prominent role in statutory interpretation under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). This symposium will explore the theoretical and doctrinal affinities and tensions between tort and anti-discrimination law, while fostering dialogue between tort and anti-discrimination scholars. Symposium participants will explore whether the connections are strong enough to justify robust use of tort principles in anti-discrimination analysis and whether anti-discrimination law should be interpreted through a torts lens. They also will discuss whether tort law should selectively adopt anti-discrimination norms and analyses. Editor-in-Chief: David J. Twombly Symposium Editor: Adam Philipp Symposium Faculty Advisors: Martha Chamallas and Sandra F. Sperino
y The Ohio State Law Journal began publication in 1935. The journal, edited and managed by law students of The Ohio State University Moritz College of Law, produces six issues a year. The journal regularly publishes outstanding scholarship by professors, judges, practitioners, and student staff members, and it is among the most-cited law reviews in the country. Recent symposia have examined global privacy protection as well as the Foreign Corrupt Practices Act’s 25th anniversary.
Schedule of Events 8:30-9:10 a.m.
Welcome and Introduction Speakers: Dean Alan C. Michaels The Ohio State University Moritz College of Law Professor Martha Chamallas The Ohio State University Moritz College of Law
Panel I: Interpretive Frames and Normative Goals
Speakers: Professor Charles A. Sullivan Seton Hall University School of Law Professor Sandra F. Sperino University of Cincinnati College of Law Professor Jonathan Cardi Wake Forest University School of Law Professor William R. Corbett Louisiana State University Law Center Moderator: Professor Cinnamon Carlarne The Ohio State University Moritz College of Law 11-11:15 a.m.
Panel II: Core Elements Speakers: Professor Anthony Sebok Yeshiva University Cardozo School of Law Professor Catherine M. Sharkey New York University School of Law Professor Catherine E. Smith University of Denver Sturm College of Law Moderator: Professor Sarah Rudolph Cole The Ohio State University Moritz College of Law
Panel III: Other Civil Rights Paradigms Speakers: Professor Angela Onwuachi-Willig The University of Iowa College of Law Ifeoma Ajunwa Research Fellow, Columbia Law School Professor Maria Linda Ontiveros University of San Francisco School of Law Professor Laura Rothstein University of Louisville Louis D. Brandeis School of Law Moderator: Professor Kathy Seward Northern The Ohio State University Moritz College of Law
Panel IV: Harassment, Retaliation, and Vicarious Liability 3:15-4:45 p.m.
Speakers: Professor Martha Chamallas The Ohio State University Moritz College of Law Professor Deborah L. Brake University of Pittsburgh School of Law Professor L. Camille HĂŠbert The Ohio State University Moritz College of Law Moderator: Professor Verna L. Williams University of Cincinnati College of Law
Welcome and Introduction Dean Alan C. Michaels The Ohio State University Moritz College of Law
Michaels became dean of The Ohio State University Moritz College of Law in November 2008. Michaels graduated from Harvard College magna cum laude in 1983 and from Columbia University School of Law in 1986. Following graduation from law school, he clerked for Chief Judge Wilfred Feinberg of the U.S. Court of Appeals for the Second Circuit and then Associate Justice Harry A. Blackmun of the U.S. Supreme Court. Michaels spent three years in private practice representing the Major League Baseball Players Association and then served for four years as a prosecutor in New York County before joining Ohio State in 1995. From 2001 to 2003, he served Moritz as associate dean for faculty and also has been a visiting professor at the University of Michigan.
Michaels has taught Criminal Law, Criminal Procedure: Adjudication, White Collar Crime, and Sports Law. His research, primarily in the area of the mens rea of crimes and in the adjudicatory portion of criminal procedure, has been published in a variety of leading journals, including Columbia Law Review, Harvard Law Review, and Southern California Law Review. He is co-author with Professor Joshua Dressler of Understanding Criminal Procedure (4th edition) and serves as co-managing editor of the Ohio State Journal of Criminal Law. Michaels was the recipient of the 1998-99 Outstanding Scholarly Paper Award from the Association of American Law Schools. He was chosen as the Outstanding Professor by the graduating classes of 1999 and 2000.
Panel I: Interpretive Frames and Normative Goals Moderator: Professor Cinnamon Carlarne
The Ohio State University Moritz College of Law
Professor Charles A. Sullivan Seton Hall University School of Law
y Sullivan received his B.A. from Siena College, his LL.B. from Harvard University, and his LL.M. from New York University. He practiced in New York and previously taught at the University of South Carolina and the University of Arkansas. Sullivan has published in the areas of employment discrimination, employment law, contracts, and antitrust. He is co-author of Employment Discrimination: Law & Practice, now in its fourth edition; Cases and Materials on Employment Discrimination, now in its eighth edition; Employment Law: Private Ordering and its Limitations, now in its second edition; and Cases and Materials on Employment Law (1993). Sullivan has written a number of law review articles, most recently having published in The Georgetown Law Journal, Northwestern University Law Review, and William and Mary Law Review. An elected member of the American Law Institute, he joined the Seton Hall Law faculty in 1978. He was honored with the Catania Chair in 2010, named in memory of a deceased colleague, friend, and co-author. He served as associate dean at Seton Hall from 1995 until 2001 and has directed the Rodino Library since 2008.
Professor Sandra F. Sperino
University of Cincinnati College of Law
y Sperinoâ€™s scholarship focuses on the intersection of torts, civil procedure, and discrimination law. Her recent work is published in the Michigan Law Review, University of Illinois Law Review, Alabama Law Review, and Notre Dame Law Review, among others. Sperino is the co-author of an employment discrimination casebook, Employment Discrimination: Context and Practice (2010, with Susan Grover and Jarod S. Gonzalez). She recently served as lead counsel on an amicus brief filed in the United States Supreme Court in a case considering the appropriate causal standard for retaliation claims under Title VII. This year she received the Goldman Prize for Excellence in Teaching. Her article The Tort Label was selected for the 2013 Harvard/Stanford/Yale Faculty Forum. Sperino graduated from the University of Illinois College of Law, where she served as editor-in-chief of the University of Illinois Law Review. After graduating from law school she clerked for the Honorable Donald J. Stohr, U.S. District Court for the Eastern District of Missouri. She practiced employment law at Lewis, Rice & Fingersh. Prior to joining the UC faculty, she was an assistant professor at Temple University Beasley School of Law. She also was a visiting professor at the University of Illinois College of Law. She has served as chair of the Employment Discrimination Law Section of the American Association of Law Schools.
Professor Jonathan Cardi
Wake Forest University School of Law
y Cardi joined the faculty of Wake Forest in July 2010. Cardi specializes in tort law, the law of remedies, and the intersection of race and the law. He is co-author of a torts casebook, a remedies casebook, two commercial outlines, and is co-editor of a book titled Critical Race Realism. He has served as president of the Southeastern Association of Law Schools and chair of the Remedies Section of the American Association of Law Schools, and he is a member of the American Law Institute, serving as advisor to the Restatement (Third) of Torts. He is also a contributor to the European Group on Tort Law. Cardi received his B.A. from Harvard and his J.D. from the University of Iowa. He then clerked for the Honorable Judge Alan Norris of the U.S. Federal Court of Appeals for the Sixth Circuit before working as a litigator at the Washington, D.C. law firm, Arnold & Porter. Prior to joining Wake Forest, Cardi was a faculty member at the University of Kentucky College of Law, where he taught for eight years.
Professor William R. Corbett
Louisiana State University Law Center
y Corbett holds the Frank L. Maraist Professorship at the Paul M. Hebert Law Center of Louisiana State University. He has been a faculty member at LSU since 1991. In 22 years on the faculty, Corbett has taught Labor Law, Employment Law, Employment Discrimination, Comparative Labor Law, Torts, Relational Torts, Federal Civil Procedure, and Louisiana Civil Procedure. Corbett served as vice chancellor for academic affairs of the Law Center from 1997 through 1999. He was a visiting associate professor at The College of William & Mary in 1996 and a visiting professor at the University of Georgia School of Law in 2004 and 2011. He has served as the executive director of the Louisiana Association of Defense Counsel since 2001, with responsibility for arranging and administering the continuing legal education programs of the LADC. From 1998 to 2001, he had similar responsibilities while serving as the executive director of the Louisiana Judicial College. Corbett has contributed to several books and written numerous articles on labor, employment, and torts topics. He is a frequent speaker on continuing legal education programs. Corbett received his B.A. from Auburn University and his law degree from the University of Alabama, where he was editor-in-chief of the Alabama Law Review and a member of the Order of the Coif. Before coming to the LSU Law Center in 1991, he practiced labor and employment law in Birmingham, Ala. with Burr & Forman.
Panel II: Core Elements
Moderator: Professor Sarah Rudolph Cole
The Ohio State University Moritz College of Law
Professor Anthony Sebok Yeshiva University Cardozo School of Law Sebok is an expert on mass torts, litigation finance, comparative tort law, and legal philosophy. Before coming to Cardozo in 2007, he was the Centennial Professor of Law and the associate dean for research at Brooklyn Law School, where he taught for 15 years. He was a fellow in the Program in Law and Public Affairs at Princeton University from 2005-06, and in 1999, he was a fellow at the American Academy in Berlin. Following law school, he clerked for Chief Judge Edward N. Cahn of the U.S. District Court for the Eastern District of Pennsylvania. Sebok has authored numerous articles about litigation finance and mass restitution litigation involving tobacco, handguns, and slavery reparations. He is the author of Legal Positivism in American Jurisprudence, articles and essays on jurisprudence, and is the co-editor of The Philosophy of Law: A Collection of Essays. His casebook, Tort Law: Responsibilities and Redress, which he co-authored with John Goldberg and Benjamin Zipursky, is used at several leading law schools. Sebok is frequently quoted in the national media on timely legal issues, such as the September 11 Victim Compensation Fund. He is writing a book with Mauro Bussani of the University of Trieste on comparative tort law, which will be published by Oxford University Press.
Professor Catherine M. Sharkey New York University School of Law
y Sharkey is the Crystal Eastman Professor of Law at New York University School of Law. Sharkey is one of the nationâ€™s leading authorities on punitive damages and federal preemption. She has published dozens of articles, essays, and book chapters in the fields of torts, products liability, administrative law, and class actions. Sharkey is co-author with Richard Epstein of Cases and Materials on Torts (10th ed., 2012) and co-editor with Saul Levmore of Foundations of Tort Law (2nd ed., 2009). Sharkey is an advisor to the American Law Instituteâ€™s Restatement of the Law Third, Torts: Liability for Economic Harm and is a founding U.S. member of the World Tort Law Society. She was a 2011-12 Guggenheim Fellow and an academic consultant to the Administrative Conference of the United States. Sharkey received her B.A. in economics summa cum laude from Yale University. A Rhodes Scholar, she received an M.Sc. in economics for development, with distinction, from the University of Oxford and her J.D. from Yale Law School, where she was executive editor of The Yale Law Journal. After clerking for Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit and Justice David H. Souter of the U.S. Supreme Court, Sharkey practiced appellate litigation before becoming a tenured faculty member at Columbia Law School. She joined NYU School of Law in 2007.
Professor Catherine E. Smith
University of Denver Sturm College of Law
y Smith joined the faculty at the University of Denver Sturm College of Law in 2004. She serves as the associate dean of institutional diversity and inclusiveness, one of the few, if not the first, positions of its kind. After graduating from the University of South Carolina School of Law, Smith clerked for the late Chief Judge Henry A. Politz of the U.S. Court of Appeals for the Fifth Circuit and for U.S. Magistrate Judge William M. Catoe Jr. She then served as a legal fellow at the Southern Poverty Law Center. Before joining the faculty at the University of Denver, Smith was an assistant professor at the Thurgood Marshall School of Law from 2000 to 2004. She teaches Torts, Employment Discrimination, and Sexuality, Gender and the Law. Her research interests include torts, civil rights law, and critical race theory. Her articles have been published in a number of journals, including the Wisconsin Law Review, North Carolina Law Review, Denver University Law Review, and Connecticut Law Review. Her most recent scholarship explores the potential equal protection claims of children of same-sex parents.
Panel III: Other Civil Rights Paradigms Moderator: Professor Kathy Seward Northern
The Ohio State University Moritz College of Law
Professor Angela Onwuachi-Willig The University of Iowa College of Law Onwuachi-Willig is the Charles and Marion Kierscht Professor of Law at the University of Iowa. She joined the Iowa Law faculty in 2006 after three years on the tenure track at the University of California, Davis School of Law. She graduated from Grinnell College, Phi Beta Kappa, with a B.A. in American Studies, and received her J.D. from the University of Michigan Law School, where she was a Clarence Darrow Scholar and a note editor on the Michigan Law Review and an associate editor of the founding issue of the Michigan Journal of Race and Law. After law school, she clerked for Judge Solomon Oliver, now chief U.S. district judge for the Northern District of Ohio, and Judge Karen Nelson Moore of the U.S. Court of Appeals for the Sixth Circuit. She also worked as a labor and employment associate at Jones Day in Cleveland and Foley Hoag in Boston.
Her articles have appeared in or are forthcoming in many prestigious law journals, including The Yale Law Journal, California Law Review, Michigan Law Review, The Georgetown Law Journal, and Vanderbilt Law Review. Onwuachi-Willig also has published numerous newspaper opinion-editorials and is frequently invited as a speaker for law faculty workshops, conferences, and symposia. In 2006, Onwuachi-Willig was honored by the Minority Groups Section of the Association of American Law Schools (AALS) with the Derrick A. Bell Award, which is given to a junior faculty member who has made an extraordinary contribution to legal education, the legal system, or social justice. In December 2010, Onwuachi-Willig was elected to the American Law Institute, and she was selected as a finalist for the Iowa Supreme Court. In 2011, she was named one of America’s top young legal professionals by The National Law Journal, which placed her on its “Minority 40 under 40” list. In 2012, she won the Marion Huit Award, a university award given to a tenured faculty member in recognition of outstanding teaching and assistance to students, exceptional research and writing, and dedicated service to the university and the surrounding community. She serves as chair-elect of the AALS Employment Discrimination Section.
Research Fellow, Columbia Law School
y Ajunwa is a research fellow at Columbia Law School’s Center for Intersectionality and Social Policy Studies and is a Ph.D. candidate in sociology at Columbia University with ABD status (expected degree completion is May 2014). Prior to her graduate studies, Ajunwa was admitted to practice in New York and California, and she practiced business and intellectual property law in San Francisco. As a law student, she was awarded the Selected Professions Fellowship from the American Association of University Women. She earned her B.A. from the University of California, Davis, where she was a McNair Scholar. Ajunwa’s work is often transdisciplinary in nature, as evidenced by her forthcoming law review article in the University of Pennsylvania’s Journal of Law and Social Change titled “Bad Barrels: An Organizational-Based Analysis of Human Rights Abuses Within the American Carceral System.” In that article, she employs methodology and theories from sociology, organizational studies, and social psychology to bring unique insights to the legal issue of the human rights of prisoners. Her dissertation research focuses on the gendered aspects of the reentry experiences of formerly incarcerated women, particularly in relation to their intersectional identities and the effects of the collateral legal consequences of conviction.
Professor Maria Linda Ontiveros
University of San Francisco School of Law
y Ontiveros is a professor at the University of San Francisco School of Law, where she has been teaching torts for more than 10 years. She is co-author of one of the leading casebooks on employment discrimination Employment Discrimination Law: Cases and Materials on Equality in the Workplace, now in its 8th edition, and teaches a wide variety of labor and employment law classes. Her varied research agenda focuses on immigrant workers, workplace harassment of women of color, and the Thirteenth Amendment. She is the author of numerous book chapters and articles. Ontiveros earned a masterâ€™s degree in industrial and labor relations from Cornell University, a J.D. from Harvard University, and a J.S.D. from Stanford University. Prior to joining the faculty at the University of San Francisco, Ontiveros was on the faculty at Golden Gate University School of Law. She has been a visiting professor at the University of California Hastings College of Law, the University of Michigan Law School, and Santa Clara University School of Law.
Professor Laura Rothstein
University of Louisville Louis D. Brandeis School of Law
y Rothstein is a professor of law and Distinguished University Scholar at the Louis D. Brandeis School of Law at the University of Louisville, where she served as dean from 2000-2005. During her 36 years in legal education, she has written 15 books and dozens of book chapters, articles, and other works on disability discrimination, covering a broad range of issues, with an emphasis on disability discrimination in special education and higher education. In addition to teaching disability discrimination law, she has taught property and torts and remedies. From those combined subject areas, she has developed an interest in the intersection of how disability discrimination law and property and tort law might intersect on issues of architectural barriers. Rothstein’s work to promote diversity and raise awareness on issues of disability, gender, and race have been recognized in recent awards. These include the 2012 University of Louisville Award for Outstanding Scholarship, Research & Creative Activity; Excellence in Achievement Award; the Women’s Law Association of Jefferson County (2011) (honoring significant contributions to the legal profession); and the February 2011 William A. Kaplin Award for Excellence in Higher Education Law and Policy Scholarship, from the Center for Excellence in Higher Education Law and Policy, Stetson Law School. She uses her scholarship as an “advocate through education” and hopes to influence policy and practice by increasing awareness and understanding of disability rights issues. She received her B.A. in political science from the University of Kansas and her J.D. from Georgetown University Law Center.
Panel IV: Harassment, Retaliation, and Vicarious Liability Moderator: Professor Verna L. Williams
University of Cincinnati College of Law
Professor Martha Chamallas The Ohio State University Moritz College of Law
y Chamallas holds the Robert J. Lynn Chair in Law at The Ohio State University, where she teaches Torts, Employment Discrimination Law, and Gender and the Law. Her book, The Measure of Injury: Race, Gender and Tort Law (NYU Press 2010, co-authored with Jennifer B. Wriggins) examines the pervasive effects of race and gender on the law of torts. Her treatise, Introduction to Feminist Legal Theory (Aspen Publishers 2012), now in its third edition, remains the leading text in the field. She is the author of more than 40 book chapters, articles, and essays, published in law journals such as the Michigan Law Review, The University of Chicago Law Review, University of Pennsylvania Law Review, UCLA Law Review, and Southern California Law Review. In tort law, she has written extensively about hidden biases in the calculation of damages and the low status accorded to non-physical harms, such as emotional distress and relational injuries. In anti-discrimination law, she has published articles on implicit bias, sexual harassment, pay equity, and constructive discharge law. She received the University Distinguished Scholar Award (2013) and the University Distinguished Lecturer Award (2006) from Ohio State in recognition of her scholarly achievements. Prior to joining the Ohio State law faculty in 2002, Chamallas served on the law faculties of the University of Pittsburgh, the University of Iowa and Louisiana State University. She has held visiting professorships at Harvard University, Washington University at St. Louis, the University of Richmond, Suffolk University, and the University of Ghent.
Professor Deborah L. Brake
University of Pittsburgh School of Law Brake is a professor of law and Distinguished Faculty Scholar at the University of Pittsburgh School of Law. Her scholarship explores the theory and doctrine of equality law and the relationship between law and social change. She has written several articles on retaliation and negative reactions to equality claims, examining how constitutional and statutory law responds to persons who challenge inequality. She is also known for her work on Title IX. Her book, Getting in the Game: Title IX and the Women’s Sports Revolution, was recently released in paperback. Her articles have appeared in journals such as the Minnesota Law Review, William and Mary Law Review, North Carolina Law Review, and the Harvard Journal of Law & Gender. Her latest article, “Retaliation in an EEO World,” is forthcoming in the Indiana Law Journal.
Brake strives to connect her scholarly work to practical legal problems. In 2012, she co-authored a resource guide and model policy for the NCAA to prevent inappropriate, exploitative relationships between student-athletes and coaches. Prior to that, she co-authored an amicus brief on behalf of women’s rights organizations in Ledbetter v. Goodyear Tire & Rubber Co., and later testified before Congress in support of the Lilly Ledbetter Fair Pay Act, which overrode that decision. Most recently, she co-authored an amicus brief in support of a cert. petition in Young v. U.P.S., a case upholding an employer’s refusal to provide light duty accommodations for pregnancy under the Pregnancy Discrimination Act. In 2011, she was awarded the Iris Marion Young Award for Political Engagement. Before joining the faculty of the University of Pittsburgh, Brake was senior counsel at the National Women’s Law Center in Washington, D.C. She is a graduate of Harvard Law School, magna cum laude, and Stanford University.
Professor L. Camille Hébert
The Ohio State University Moritz College of Law
y Hébert is the Carter C. Kissell Professor of Law at The Ohio State University Moritz College of Law. She is a graduate of the University of Kansas School of Law, where she served as editor-in-chief of the Kansas Law Review. After law school, she served as a judicial law clerk to the Honorable James K. Logan of the U.S. Court of Appeals for the Tenth Circuit and practiced management-side labor and employment law with the Kansas City, Mo. law firm of Spencer, Fane, Britt & Browne. From 1997 to 2000, Hébert served as associate dean for academic affairs at the Moritz College of Law. Hébert’s courses include Employment Discrimination Law, Employment Law, Employee Benefits, Alternative Dispute Resolution in the Workplace, Legal Writing and Analysis, and a Sexual Harassment seminar. She taught Comparative Employment Discrimination and Comparative Dispute Resolution during the Oxford semester program in 2010. Hébert has published a number of law review articles on employment discrimination, sexual harassment, employee privacy, and alternative dispute resolution (ADR). Her treatise Employee Privacy Law was published in 1993 and is supplemented annually. Her most recent research project involved an analysis of France’s sexual harassment law, undertaken at the Centre for Comparative Labour and Social Security Law at the University of Bordeaux IV, France.
Information CLE Credit The Supreme Court of Ohio Commission on Continuing Legal Education has approved this symposium for 5.50 total CLE hours of instruction.
Lunch The Ohio State University Moritz College of Law is located conveniently near many dining establishments. We encourage attendees to visit the Ohio Union at the corner of 12th Avenue and High Street or the South Campus Gateway, which runs the length of High Street from 11th to 9th avenues, for lunch options.
The Ohio State Law Journal would like to thank our co-sponsors for their generous support:
55 W. 12th Ave., Columbus, OH 43210 www.moritzlaw.osu.edu