Copyright (c) 2009 All rights reserved. http://works.bepress.com/david_cohen Recent documents in David S Cohen en-us Thu, 22 Oct 2009 09:43:35 PDT 3600 http://works.bepress.com/david_cohen/11 http://works.bepress.com/david_cohen/11 Mon, 17 Aug 2009 11:47:06 PDT A voting paradox arises when the outcome of a case is the opposite of the resolution of the individual issues within the case. For instance, eight Justices believe a statute is constitutional under the Due Process Clause, and five Justices believe the same statute is constitutional under the Takings Clause. Yet, because one Justice believes the statute violates the Due Process Clause and four Justices believe the statute violates the Takings Clause, a majority of the Court finds the statute is unconstitutional. Scholars have looked at voting paradoxes in the Supreme Court and found roughly twenty over the Court's history.In this Article, drawing mostly on social choice theory, I describe and model a particular kind of voting paradox that no one has addressed before - the precedent-based voting paradox. Unlike previously described voting paradoxes, which scholars have noted need at least two issues presented to the Court, the precedent-based voting paradox can arise when seemingly only one issue is presented to the Court. As I show in the Article, because the question of whether to overrule precedent can almost always lurk in the background of an issue, almost any case before the Court can result in a voting paradox.Beyond introducing and modeling these precedent-based voting paradoxes, this Article makes four novel contributions to the growing literature on Supreme Court voting paradoxes. First, with the precedent-based voting paradox understood, voting paradoxes in the Supreme Court are more common than previously thought, and this Article catalogs the eleven that have occurred in Supreme Court history. Second, because of the precedent-based voting paradox, this Article argues that changing the Court's voting rules from outcome to issue voting, as some have argued in order to avoid voting paradoxes, would not solve the problem because even single issues can result in a precedent-based voting paradox. Third, this Article shows how Justices can use the precedent-based voting paradox to manipulate voting patterns to achieve results they want. Finally, this Article argues that lawyers should consider the precedent-based voting paradox when briefing cases and more frequently include arguments to overturn precedent. David S. Cohen http://works.bepress.com/david_cohen/10 http://works.bepress.com/david_cohen/10 Wed, 11 Mar 2009 09:49:01 PDT In late 2006, the Department of Education changed the Title IX regulations to broaden the permissibility of single-sex education in primary and secondary schools. The changes took place in the context of a growing concern over the performance and well-being of boys in American schools. This article describes, dissects, and critically analyzes the narrative about boys, masculinity, and single-sex education that surrounded these changes.The public narrative about the need for single-sex education focused, in substantial part, on what I call the essentialist myth of masculinity. This article catalogs the important components of this myth: heteronormativity, aggression, activity, sports-obsession, competitiveness, stoicism, and not being girls. The article then shows, using education and gender theory, that this conception of masculinity is harmful to both girls and boys. Instead of pushing this form of masculinity, the law and schools should make room for multiple and varied masculinities for boys (and girls).The article argues that the Title IX regulatory change that allows for the expansion of single-sex schooling can actually work to further empower and entrench the essentialist myth of masculinity, thus violating its own prohibition on sex stereotyping. By adopting strong interpretations of already-existing jurisprudence about gender stereotyping from both constitutional law and Title IX, the article shows how de-essentializing masculinity is possible and preferable in the law. The article concludes that schools that implement single-sex education must do so for reasons other than promoting an essentialized notion of masculinity and that the law must be vigilant in ensuring that schools' implementation not further reify dominant conceptions of what it means to be a boy. David S. Cohen Sex Discrimination http://works.bepress.com/david_cohen/9 http://works.bepress.com/david_cohen/9 Wed, 11 Mar 2009 09:41:33 PDT As part of the South Carolina Law Review's symposium on the Roberts Court and Equal Protection, this essay looks at Justice Kennedy's sex discrimination jurisprudence. With the new Court, it's natural to be concerned with how the two new Justices might vote in upcoming sex discrimination cases. However, in this essay, I assume what has been the case so far from Chief Justice Roberts and Justice Alito - that they are reliable votes joining Justices Scalia and Thomas on the Court's more conservative wing. The Justice most people should focus on now is Justice Kennedy, the new median Justice now that Justice O'Connor has retired.This essay seeks to analyze Justice Kennedy's sex discrimination jurisprudence and draw conclusions about his thoughts on sex and gender. First, it reviews the cases involving sex discrimination that Justice Kennedy has participated in while on the Court and shows that he has been a fairly consistent vote against sex discrimination claims. Second, it analyzes Justice Kennedy's votes and opinions in sex discrimination cases and attempt to summarize his views. Finally, the essay evaluates Justice Kennedy's conceptions of gender in his opinions and votes. The essay concludes that Justice Kennedy's new role as median Justice is troubling for sex equality jurisprudence generally and constitutional sex discrimination cases specifically, as Justice Kennedy has shown a tendency, in the many cases arising in the parent/child context, to adhere to traditional and paternalistic gender roles. David S. Cohen Sex Discrimination http://works.bepress.com/david_cohen/8 http://works.bepress.com/david_cohen/8 Mon, 12 Feb 2007 07:54:59 PST David S. Cohen Sex Discrimination http://works.bepress.com/david_cohen/7 http://works.bepress.com/david_cohen/7 Thu, 01 Feb 2007 13:18:47 PST Susan Frietsche Sex Discrimination http://works.bepress.com/david_cohen/5 http://works.bepress.com/david_cohen/5 Thu, 01 Feb 2007 12:57:08 PST Lynn M. Paltrow Sex Discrimination http://works.bepress.com/david_cohen/4 http://works.bepress.com/david_cohen/4 Thu, 01 Feb 2007 09:42:40 PST David S. Cohen Civil Rights http://works.bepress.com/david_cohen/3 http://works.bepress.com/david_cohen/3 Thu, 01 Feb 2007 09:16:48 PST David S. Cohen Civil Rights http://works.bepress.com/david_cohen/2 http://works.bepress.com/david_cohen/2 Wed, 31 Jan 2007 13:53:42 PST David S. Cohen Sex Discrimination http://works.bepress.com/david_cohen/1 http://works.bepress.com/david_cohen/1 Wed, 31 Jan 2007 13:26:14 PST The relationship between Title IX and the Equal Protection Clause is relevant to many areas of sex discrimination law. First and foremost, the issue has arisen when courts have attempted to determine the scope of Title IX's prohibition of sex discrimination. For instance, in Tara Brady's case, whether she could successfully bring a sex discrimination suit for monetary damages under Title IX, which says nothing on its face about pregnancy,(FN9) requires a determination of whether a plaintiff can bring a claim for monetary damages grounded in Title IX's regulation that prohibits pregnancy-based discrimination. After the Supreme Court's decision in Alexander v. Sandoval,(FN10) a Title VI case, which concluded that Title VI's regulations prohibiting disparate impact discrimination cannot form the basis of a private cause of action because Title VI itself prohibits only disparate treatment,(FN11) the Title IX pregnancy issue most likely will turn on whether Title IX itself, as opposed to its regulations, prohibits discrimination based on pregnancy.(FN12) If Title IX is coextensive with the Equal Protection Clause, which does not consider discrimination based on pregnancy as discrimination based on sex,"(FN13) then there is no private cause of action under Title IX for pregnancy discrimination. David S. Cohen Sex Discrimination