Social and Behavioral Sciences Commons^™

Beyond Equality And Discrimination, Martha Albertson Fineman

Faculty Articles

The theme of this Article for the SMU Law Review Forum focuses us on the challenges faced by the “economically disadvantaged” in the past decade and in the future. This framing is rooted in a distinction between that conceptual status of equality and the actuality of discrimination and disadvantage. This is the lens through which contemporary legal culture tends to assess the nature and effect of existing laws and determines the necessary direction of reform. As such, this paradigm provides the governing logic for both criticism and justification of the status quo. It is rooted in an understanding of the …

Vulnerability And Inevitable Inequality, Martha Albertson Fineman

Faculty Articles

The abstract legal subject of liberal Western democracies fails to reflect the fundamental reality of the human condition, which is vulnerability. While it is universal and constant, vulnerability is manifested differently in individuals, often resulting in significant differences in position and circumstance. In spite of such differences, political theory positions equality as the foundation for law and policy, and privileges autonomy, independence and self-sufficiency. This article traces the origins and development of a critical legal theory that brings human vulnerability to the fore in assessing individual and state responsibility and redefining the parameters of social justice. The theory arose in …

Equality And Difference - The Restrained State, Martha Albertson Fineman

Faculty Articles

Contemporary American law, culture, and political theory restrain the concept of equality as a tool of social justice. Equality in conjunction with a strong emphasis on personal liberty operates as a mandate for curtailing state action, rather than an aspirational measure of the comparative wellbeing of individuals. As a check on state involvement, our cramped notion of equality limits the state's ability to affirmatively address economic, political, social, and structural inequalities.

As interpreted in modern Supreme Court jurisprudence, the Equal Protection Clause of the U.S. Constitution actually works to restrict the remedial ability of the state. Equality is understood as …