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Equal Protection’S Antinomies And The Promise Of A Co-Constitutive Approach, Julie Nice
Julie A. Nice
This article explores how a central insight of Law and Society scholarship – that law and society are mutually constitutive – explains and informs Equal Protection jurisprudence. Professor Nice describes the state of equal protection discourse as caught in perpetual antinomic debates, with courts typically endorsing the more conservative alternative within such debates, including: (1) adopting assimilation (not anti-subordination) as the goal; (2) treating subordinated persons the same as (not different than) dominant persons; (3) looking backward toward remediation (not forward toward substantive equality); (4) requiring blindness (not consciousness) of the relevant trait; (5) focusing on the classifying trait (not the disadvantaged ...