Nancy Gertner (Harvard Law School) has posted The Judicial Repeal of the Johnson/Kennedy Administration's 'Signature' Achievement on SSRN. Here is the abstract:
The Civil Rights Act of 1964, one of the most significant legislative achievements in American history, has been gutted. This is not because of Congress, or an Executive agency; it is because of the courts. Federal judges, from trial courts to the Supreme Court, from one end of the country to the other, of all political affiliations, have interpreted the Act virtually, although not entirely, out of existence.
Plaintiffs in discrimination cases lose on summary judgment, more than any other party in any other type of case. If they get to a jury trial, their damage verdicts run the risk of being reduced by trial judges and their counsel's fees slashed -- more than the verdicts or fees of plaintiffs and plaintiffs' counsel in any other category of case. Even successful plaintiffs' verdicts are reversed more than jury verdicts in any other type of case.
It is not simply that plaintiffs lose, but how they lose -- in decision after decision that legitimizes discriminator practices and behavior that would have been abhorrent when the Civil Rights Act was passed.
This article offers a preliminary explanation for the pattern and suggestions for change.