Law Commons^™

Reckoning With Race And Disability, Jasmine E. Harris

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Our national reckoning with race and inequality must include disability. Race and disability have a complicated but interconnected history. Yet discussions of our most salient socio-political issues such as police violence, prison abolition, healthcare, poverty, and education continue to treat race and disability as distinct, largely biologically based distinctions justifying differential treatment in law and policy. This approach has ignored the ways in which states have relied on disability as a tool of subordination, leading to the invisibility of disabled people of color in civil rights movements and an incomplete theoretical and remedial framework for contemporary justice initiatives. Legal scholars …

How Medicalization Of Civil Rights Could Disappoint, Allison K. Hoffman

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This essay reflects on Craig Konnoth’s recent Article, Medicalization and the New Civil Rights, which is a carefully crafted and thought-provoking description of the refashioning of civil rights claims into medical rights frameworks. He compellingly threads together many intellectual traditions—from antidiscrimination law to disability law to health law—to illustrate the pervasiveness of the phenomenon that he describes and why it might be productive as a tool to advance civil rights.

This response, however, offers several reasons why medicalization may not cure all that ails civil rights litigation’s pains and elaborates on the potential risks of overinvesting in medical rights-seeking. …

Dismantling “Dilemmas Of Difference” In The Workplace, Rangita De Silva De Alwis, Sarah Heberlig, Lindsay Holcomb

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Over the course of six months, the University of Pennsylvania Carey Law School’s class “Women, Law, and Leadership” interviewed 55 women between the ages of 25 and 85, all leaders in their respective fields. Nearly half of the women interviewed were women of color, and 10 of the women lived and worked in countries other than the U.S., spanning across Europe, Africa, and Southeast Asia. Threading together the common themes touched upon in these conversations, we gleaned a number of novel insights, distinguishing the leadership trajectories pursued by women who have risen to the heights of their professions. Through thousands …

The Aesthetics Of Disability, Jasmine E. Harris

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The foundational faith of disability law is the proposition that we can reduce disability discrimination if we can foster interactions between disabled and nondisabled people. This central faith, which is rooted in contact theory, has encouraged integration of people with and without disabilities, with the expectation that contact will reduce preju­dicial atti­tudes and shift societal norms. However, neither the scholarship nor disa­bility law sufficiently accounts for what this Article calls the “aesthetics of disability,” the proposition that our interaction with dis­ability is medi­ated by an affective process that inclines us to like, dislike, be attracted to, or be repulsed by …

Why Baby Markets Aren’T Free, Dorothy E. Roberts

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Creating families in the twenty-first century increasingly happens in markets where the buying and selling of reproductive goods and services are facilitated by advanced technologies, the internet, contracts, and state laws and policies. Thus, the title of this international congress—“Baby Markets”—aptly captures a key aspect of modern reproduction. The ability of potential parents to engage in market transactions involving children enhances parents’ autonomy over their family lives. The free market seems to liberate us from the constraints of biology and state control.

This Essay argues, however, that baby markets aren’t free. Three aspects of the way reproductive goods and services …

Crossing Two Color Lines: Interracial Marriage And Residential Segregation In Chicago, Dorothy E. Roberts

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Residential segregation and antimiscegenation were interwined means of maintaining an unequal racial order, challenging both sociological theories about immigrant assimilation and upward mobility and legal theories about the significance of interracial marriage for racial equality.

The Myth Of Equality In The Employment Relation, Aditi Bagchi

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Although it is widely understood that employers and employees are not equally situated, we fail adequately to account for this inequality in the law governing their relationship. We can best understand this inequality in terms of status, which encompasses one’s level of income, leisure and discretion. For a variety of misguided reasons, contract law has been historically highly resistant to the introduction of status-based principles. Courts have preferred to characterize the unfavorable circumstances that many employees face as the product of unequal bargaining power. But bargaining power disparity does not capture the moral problem raised by inequality in the employment …

Stereotype Threat: A Case Of Overclaim Syndrome?, Amy L. Wax

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The theory of Stereotype Threat (ST) predicts that, when widely accepted stereotypes allege a group’s intellectual inferiority, fears of confirming these stereotypes cause individuals in the group to underperform relative to their true ability and knowledge. There are now hundreds of published studies purporting to document an impact for ST on the performance of women and racial minorities in a range of situations. This article reviews the literature on stereotype threat, focusing especially on studies investigating the influence of ST in the context of gender. It concludes that there is currently no justification for concluding that ST explains women’s underperformance …

The Strange Career Of Jane Crow: Sex Segregation And The Transformation Of Anti-Discrimination Discourse, Serena Mayeri

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This article examines the causes and consequences of a transformation in anti-discrimination discourse between 1970 and 1977 that shapes our constitutional landscape to this day. Fears of cross-racial intimacy leading to interracial marriage galvanized many white Southerners to oppose school desegregation in the 1950s and 1960s. In the wake of Brown v. Board of Education, some commentators, politicians, and ordinary citizens proposed a solution: segregate the newly integrated schools by sex. When court-ordered desegregation became a reality in the late 1960s, a smattering of southern school districts implemented sex separation plans. As late as 1969, no one saw sex-segregated schools …