Torgerson's Twilight: The Antidiscrimination Jurisprudence Of Judge Diana E. Murphy, David Schraub
Dec 2017
Torgerson's Twilight: The Antidiscrimination Jurisprudence Of Judge Diana E. Murphy, David Schraub
David Schraub
An essay for the Minnesota Law Review's symposium honoring the memory of Judge Diana E. Murphy, United States Court of Appeals for the Eighth Circuit.
Post-Racialism And The End Of Strict Scrutiny, David Schraub
Dec 2016
Post-Racialism And The End Of Strict Scrutiny, David Schraub
David Schraub
In recent years, a growing social consensus has emerged around the aspiration of a “post-racial” America: one where race is no longer a fault line for social strife or, perhaps, a morally significant trait whatsoever. This ambition, however, lies in tension with the most basic constitutional principle governing our treatment of race in the public sphere: that of “strict scrutiny.” Post-racialism seeks to diminish the salience of race to near-negligibility. The strict scrutiny of racial classifications, by contrast, significantly enhances the salience of race by treating it differently from virtually every other personal attribute or characteristic - including hair or …
Finding The Sovereign In Sovereign Immunity: Lessons From Bodin, Hobbes, And Rousseau, David Schraub
Dec 2016
Finding The Sovereign In Sovereign Immunity: Lessons From Bodin, Hobbes, And Rousseau, David Schraub
David Schraub
The doctrine of “sovereign immunity” holds that the U.S. government cannot be sued without its consent. This is not found in the Constitution’s text; it is justified on philosophical grounds as inherent to being a sovereign state: a sovereign must be able to issue commands free from constraint. The sources of this understanding of sovereignty—Hobbes, Bodin, and others—are, in turn, condemned by opponents of sovereign immunity as absolutists whose doctrines are incompatible with limited, constitutional government. This debate, and thus the usual conception of sovereign immunity, rests on a fundamental mistake. Hobbes and his peers were careful to avoid the …
Our Divine Constitution, David Schraub
Aug 2016
Our Divine Constitution, David Schraub
David Schraub
No abstract provided.
Academic Freedom Versus Academic Legitimacy, David Schraub
Aug 2016
Academic Freedom Versus Academic Legitimacy, David Schraub
David Schraub
No abstract provided.
Racism As Subjectification, David Schraub
Aug 2016
Racism As Subjectification, David Schraub
David Schraub
Nobody likes to feel used. But everyone likes to feel useful. This paradox has long been overlooked by people examining the parameters of racism in the United States. The classic model of racism focuses on the manner in which Black Americans have been objectified—and for good reason. From chattel slavery to Jim Crow, African Americans have faced a long and sordid history of being regarded as little more than objects—useful tools for White power-brokers, but not independent subjects with their own desires, perspective, and rights.
However, following the Civil Rights revolution, this dynamic has shifted. While racial objectification has by …
Playing With Cards: Discrimination Claims And The Charge Of Bad Faith, David Schraub
Dec 2015
Playing With Cards: Discrimination Claims And The Charge Of Bad Faith, David Schraub
David Schraub
A common response to claims of bias, harassment, or discrimination is to say that these claims are made in bad faith. Claimants are supposedly not motivated by a credible or even sincere belief that unfair or unequal treatment has occurred, but simply seek to illicitly gain public sympathy or private reward. Characterizing discrimination claims as systemically made in bad faith enables them to be screened and dismissed prior to engaging with them on their merits. This retort preserves the dominant groups' self-image as unprejudiced and innocent without having to risk critical analysis of the claim's substance.
Unsuspecting, David Schraub
Dec 2015
Unsuspecting, David Schraub
David Schraub
All laws classify, but not all classifications are created equal. Under contemporary Fourteenth Amendment doctrine, certain classifications are “suspect”, triggering heightened judicial review and often rendering the targeted legislation unconstitutional. Because the alternative rational basis test is so deferential, the question over which sorts of classifications are “suspect” may be the single most important — and most discussed — issue in equal protection doctrine. Yet amidst all the talk about how a group gains recognition as a “suspect class”, there has been virtually no discussion about the seemingly obvious corollary: how a group loses its status as one. After all, …
The Siren Song Of Stict Scrutiny, David Schraub
Dec 2015
The Siren Song Of Stict Scrutiny, David Schraub
David Schraub
The past few years have seen a trickle of pro-gay rights judicial decisions turn into a flood. Yet gay rights advocates have been perplexed by one doctrinal oddity in the Court's decision-making: even as it has delivered a consistent stream of favorable decisions dating from the 1990s, it has displayed no interest in declaring sexual orientation to be a "suspect classification." This determination, which would require that sexual-orientation classifications satisfy strict scrutiny, has long been high on the objective list for the LGBT movement -- representing an official determination that sexual minorities are a politically marginalized group that faces systematic, …
Renewing Electricity Competition, David Schraub
Dec 2014
Renewing Electricity Competition, David Schraub
David Schraub
The scholarly literature on law and social movements has historically focused on public law issues like environmentalism, reproductive rights, and race relations, while staying far away from business and firm behavior. Business behavior was easily understood as that of self-interested profit maximizers, and therefore left to the economists. Recently, however, social movement theorists have begun paying more attention to the business world. While traditional economic models can explain why businesses pursue higher profits, greater market shares, and superior regulatory climates, it is limited in its ability to explain how wish becomes reality. The formation and identification of market opportunities are …
The Perils And Promise Of The Holder Memo, David Schraub
Dec 2011
The Perils And Promise Of The Holder Memo, David Schraub
David Schraub
In this Essay, I explore how the Holder Memo interacts with the formal structure of equal protection doctrine and how it has been applied to LGBT legal claims. On the one hand, the claim that the gay and lesbian community is too politically influential to enjoy heightened judicial scrutiny has been a critical argument used to stymie gay rights claims in the courts. The high-profile reversal by the Justice Department regarding the constitutionality of the Defense of Marriage Act only strengthens this argument - the very existence of the Holder Memo paradoxically may weaken the very constitutional claim it purports …
Sticky Slopes, David Schraub
Aug 2010
Sticky Slopes, David Schraub
David Schraub
Legal literature is replete with references to the infamous “slippery slope”, basically, where a shift in policy lubricates the path towards further (perhaps more controversial) reforms or measures. Less discussed is the idea of a “sticky slope”. Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it “stickier”. Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument, particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces …
