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The Character of Discrimination Law: The Incompatibility of Rule 404 and Employment Discrimination Suits |
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Lisa Marshall [View as PDF]
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114 Yale L.J. 1063 (2005)
Disregarding the dictates of Federal Rule of Evidence 404, plaintiffs in discrimination suits routinely prevail on the basis of propensity proofs. Yet neither the parties nor the courts are to blame for these rampant violations. It is, instead, the dearth of evidence available to many discrimination plaintiffs that compels defiance of the ban. Courts therefore face two options: apply the Rule in an incoherent and disruptive manner, or consistently enforce it and effectively preclude these suits. Legislators should recognize the harmful effects of this incompatibility in the law and undertake efforts to reform this notoriously problematic Rule.
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