Law Commons^™

Discriminatory Taint, Kerrel Murray

Faculty Scholarship

The truism that history matters can hide complexities. Consider the idea of problematic policy lineages. When may we call a policy the progeny of an earlier, discriminatory policy, especially if the policies diverge in design and designer? Does such a relationship condemn the later policy for all times and purposes, or can a later decisionmaker escape the past? It is an old problem, but its resolution hardly seems impending. Just recently, Supreme Court cases have confronted this fact pattern across subject matters as diverse as entry restrictions, nonunanimous juries, and redistricting, among others. Majority opinions seem unsure whether or why …

Rights As Trumps?, Jamal Greene

Faculty Scholarship

Rights are more than mere interests, but they are not absolute. And so two competing frames have emerged for adjudicating conflicts over rights. Under the first frame, rights are absolute but for the exceptional circumstances in which they may be limited. Constitutional adjudication within this frame is primarily an interpretive exercise fixed on identifying the substance and reach of any constitutional rights at issue. Under the second frame, rights are limited but for the exceptional circumstances in which they are absolute. Adjudication within this frame is primarily an empirical exercise fixed on testing the government’s justification for its action. In …

Race Liberalism And The Deradicalization Of Racial Reform, Kimberlé W. Crenshaw

Faculty Scholarship

Recent works by neoconservatives and by Critical legal scholars have suggested that civil rights reforms have been an unsuccessful means of achieving racial equality in America. In this Article, Professor Crenshaw considers these critiques and analyzes the continuing role of racism in the subordination of Black Americans. The neoconservative emphasis on formal colorblindness, she argues, fails to recognize the indeterminacy of civil rights laws and the force of lingering racial disparities. The Critical scholars, who emphasize the legitimating role of legal ideology and legal rights rhetoric, are substantially correct, according to Professor Crenshaw, but they fail to appreciate the choices …

Intimate Discrimination: The State's Role In The Accidents Of Sex And Love, Elizabeth F. Emens

Faculty Scholarship

This is a challenging moment for the law of discrimination. The state's role in discrimination has largely shifted from requiring discrimination – through official policies such as segregation – to prohibiting discrimination – through federal laws covering areas such as employment, housing, education, and public accommodations. Yet the problem of discrimination persists, often in forms that are hard to regulate or even to recognize.

At this challenging moment, the intimate domain presents a vital terrain for study in two main ways. First, conceptually, studying the intimate domain permits new insights into discrimination and the law's identity categories, because people are …

The "Inexorable Zero", Bert I. Huang

Faculty Scholarship

[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."

The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an …

"Prescriptive Equality": Two Steps Forward, Kent Greenawalt

Faculty Scholarship

In this Response to Professor Peters, Professor Greenawalt argues that prescriptive equality does have meaningful normative force. Prescriptive equality plays a reinforcing role when it agrees with nonegalitarian justice and is not incoherent when it pulls against nonegalitarian justice. Specifically, when one individual has been treated better than is required by nonegalitarian justice, a similarly situated and significantly related individual who is aware of that treatment may merit equivalent treatment because of widespread and deep-seated feelings about equality.

Race, Reform, And Retrenchment: Transformation And Legitimation In Antidiscrimination Law, Kimberlé W. Crenshaw

Faculty Scholarship

Recent works by neoconservatives and by Critical legal scholars have suggested that civil rights reforms have been an unsuccessful means of achieving racial equality in America. In this Article, Professor Crenshaw considers these critiques and analyzes the continuing role of racism in the subordination of Black Americans. The neoconservative emphasis on formal colorblindness, she argues, fails to recognize the indeterminacy of civil rights laws and the force of lingering racial disparities. The Critical scholars, who emphasize the legitimating role of legal ideology and legal rights rhetoric, are substantially correct, according to Professor Crenshaw, but they fail to appreciate the choices …

Equalities Real And Ideal: Affirmative Action In Indian Law Review, Lance Liebman

Faculty Scholarship

American legal scholars have devoted surprisingly little effort to studying India. In India, as in America, judges, lawyers, and legislators have had to shape a transplanted legal system with English roots. Both countries have adapted English legal institutions to conditions far more heterogeneous – ethnically, racially, linguistically,and geographically – than those of the mother country. It thus seems no accident that India's constitutional structure parallels that of the United States in so many ways. For example, India has a written constitution that embodies principles of federalism and separation of powers, and that provides for judicially enforced guarantees of individual rights. …

Section 1983 And Federalism, Richard Briffault

Faculty Scholarship

The relationship between the themes of federalism and individual rights is one that runs deep in American intellectual and social history. And it is one that has changed drastically with changes in the conditions and temperament of our society.

In the early days of the Republic, federalism was viewed as. a means of protecting individual rights from the tyranny of a unified central government. The Civil War brought with it a rejection of this guiding principle. State autonomy came to be seen not as a means to protect the individual from government abuse but rather as the primary source of …