Wednesday, December 31, 2014

"Affirmative Action and Stereotypes in Higher Education Admissions"

The title of this post comes from this recent paper by Professors Prasad Krishnamurthy and Aaron Edlin, the abstract of which states:

We analyze how admission policies affect stereotypes against students from disadvantaged groups. Many critics of affirmative action argue that lower admission standards cause such stereotypes and suggest group-blind admissions as a remedy. We show that when stereotypes result from social inequality, they can persist under group-blind admissions. In such cases, eliminating stereotypes perversely requires a higher admission standard for disadvantaged students. If a school seeks both to treat students equally and limit stereotypes, the optimal admission policy would still impose a higher standard on disadvantaged students. A third goal, such as equal representation, is required to justify group-blind admissions. Even when there is such a third goal, group-blind admissions are optimal only when the conflicting goals of equal representation and limiting stereotypes exactly balance. This is an implausible justification for group-blind admission because it implies that some schools desire higher standards for disadvantaged students. Schools that do not desire such higher standards will typically find some amount of affirmative action to be optimal.

December 31, 2014 | Permalink | Comments (0)

Tuesday, December 30, 2014

"Dividing Crime, Multiplying Punishments"

The title of this post comes from this paper by Professor John Stinneford, the abstract of which states:

When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will. 

This article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and a systemic bias against overpunishment. A punishment was deemed excessive under the Cruel and Unusual Punishments Clause if it was greater than an offender’s retributive desert, as measured against longstanding punishment practice. Prior to the Twentieth Century, if prosecutors proposed a novel unit of prosecution for a given crime, courts asked two questions: (1) Does this unit of prosecution give the government the opportunity to bring multiple charges based on a single course of conduct? (2) If so, would the bringing of multiple charges create an arbitrary relationship between the offender’s culpability and his cumulative punishment, measured in light of prior punishment practice? Courts employed this analysis whether the unit of prosecution was challenged under the Cruel and Unusual Punishments Clause, the Double Jeopardy Clause, or the rule of strict construction of penal statutes (the forerunner to today’s rule of lenity). By recovering this methodology for addressing prosecutorial efforts to divide crime and multiply punishments, we can ameliorate our current mass incarceration crisis and make the American criminal justice system more just.

December 30, 2014 in Theories of Punishment | Permalink | Comments (0)

Monday, December 29, 2014

"Aligning Campaign Finance Law"

The title of this post comes from this recent paper by Professor Nicholas Stephanopoulos, the abstract of which states:

Campaign finance law is in crisis. In a series of recent decisions, the Supreme Court has rejected state interests such as anti-distortion and equality, while narrowing the anti-corruption interest to its quid pro quo core. This core cannot sustain the bulk of campaign finance regulation. As a result, an array of contribution limits, expenditure limits, and public financing programs have been struck down by the Court. If any meaningful rules are to survive, a new interest capable of justifying them must be found.

This Article introduces just such an interest: the alignment of voters’ policy preferences with their government’s policy outputs. Alignment is a value of deep democratic significance. If it is achieved, then voters’ views are heeded, not ignored, by their elected representatives. Alignment also is distinct from the interests the Court previously has rebuffed. In particular, alignment and equality are separate concepts because equal voter influence is neither a necessary nor a sufficient condition for alignment to arise. And there is reason to think the Court might be drawn to alignment. In decisions spanning several decades, the Court often has affirmed that public policy ought to reflect the wishes of the people.

It is not enough, though, if alignment is merely an appealing value. For it to justify regulation, money in politics must be able to produce misalignment, and campaign finance reform must be able to promote alignment. The Article draws on a new wave of political science scholarship to establish both propositions. This work shows that individual donors are ideologically polarized, while parties and PACs are more centrist in their giving. The work also finds that politicians tend to adhere to the same positions as their principal funders. Accordingly, policies that curb the influence of individual donors would be valid under the alignment approach. But measures that burden more moderate entities could not be sustained on this basis.

December 29, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (0)

Sunday, December 28, 2014

"Civility and the Undocumented Alien"

The title of this post comes from this paper by Professor Leti Volpp, the abstract of which states:

In 2013, undocumented youth activists known as the DREAM 9 attempted to enter the borders of the United States from Mexico as a form of political protest. The action created a rare visible split among supporters of immigration reform. Some understood the action as an extension of the civil rights movement; others called it reckless and defiant. Other political activity by undocumented youth has been similarly criticized for “in-your-face agitation,” “arrogance” and the failure to be “respectful.” But as noncitizens, aliens are not allowed to take part in political processes, such as voting, that might otherwise channel legitimate political dissent. In this chapter I examine the relationship between the political activity of noncitizens, and the perception that this activity is uncivil. Can the undocumented alien's political activity ever be heard within the political boundaries of civility?

Civility can be understood to refer both to the conduct of a citizen and to the borders of civil expression. Political theorists who discuss civility assume as a discursive frame the internal life of a bounded political community, where what is put into question is the civility or incivility of the citizen. But what of the alien, who lacks the formal status of citizenship? More particularly, what of the undocumented alien, defined as an illegitimate civil subject? This chapter suggests that the relationship between civility, citizenship and the alien means that the political activity of undocumented immigrants, while in some sense the most robust civic participation imaginable, will not be experienced as civil. Arguably, civility's association with citizenship haunts the possibility of any noncitizen, particularly the undocumented noncitizen, to have her actions experienced as civil; she is perceived to simultaneously make claims upon and stand outside the demos. The turn to more confrontational political tactics risks that undocumented youth are perceived as something other than dutiful, loyal, hardworking, patriotic human capital. But this concern betrays a fundamental sense that the appropriate position is one of passive gratitude, rather than robust activity.

While civility offers itself as a universal value and as an impartial practice, it aligns itself with the powerful, casting the charge of incivility on those making a disruptive demand for inclusion. Undocumented immigrants are making claims as new political actors, pushing beyond existing frames of claim making. Undocumented youth activists remind us that civility, like citizenship, has both an inclusive and an exclusive function, in creating a space within, as well as an outside. And they tell us that while civility is sometimes vaunted for its importance in stitching the fabric between those within the political community, its most salient characteristic may be how it can be used to push others outside.

December 28, 2014 | Permalink | Comments (1)

Saturday, December 27, 2014

"No Such Thing as Race: Exploring the Past and Future of Affirmative Action after Schuette"

The title of this post comes from this paper by Professor Mary Ziegler, the abstract of which states:

On the surface, Schuette v. Coalition for Affirmative Action leaves the constitutional law of affirmative action undisturbed. Michigan had amended its state constitution to prevent the use of racial preferences by any university system or school district. Rejecting a fourteenth-amendment challenge, the Court upheld Michigan’s law. The Schuette plurality went to considerable lengths to explain that Schuette in no way touched on the constitutionality or merits of race-based admissions. Just the same, understood in historical context, the Schuette majority lays bare profound new dangers confronting proponents of affirmative action. In addition to praising colorblindness, the Court cast doubt on the very definition of race. 

This Article historicizes Schuette, revealing it to be a turning point in the law and politics of affirmative action. In the past, activists consistently used race to describe the color of one’s skin, but before Schuette, the meaning of race itself had not played a central part in challenges to the constitutional legitimacy of affirmative action. As Schuette shows, anti-affirmative action amici and activists have developed a new argument: a claim that if race is a social construct, race-conscious remedies are arbitrary, unfair, and likely to reinforce existing stereotypes.

As the new anti-affirmative action activism makes plain, the question is how courts can address racial discrimination when racial identities themselves are fluid and complex. The Article looks to employment discrimination law — and to “regarded as” liability — as a framework for judges seeking to address the reality of race discrimination without reifying racial categories. Under the Americans with Disabilities Act (ADA) and the Americans with Disability Act Amendments Act of 2009 (ADAAA), a worker may in certain cases seek relief when she is regarded as disabled — regardless of whether she actually belongs to a protected class. The Article argues that regarded-as reasoning has considerable potential in the context of postsecondary admissions. In complying with existing fourteenth-amendment jurisprudence, admissions officers already rely on proxies for applicants’ race. Doing so checks self-serving behavior and better captures the fluidity of race in modern America.

December 27, 2014 in Equal Protection Clause | Permalink | Comments (0)

Friday, December 26, 2014

"Civil Liberties Outside the Courts"

The title of this post comes from this recent paper by Professor Laura Weinrib, the abstract of which states:

This article recovers the institutional alternatives to judicial enforcement of civil liberties during the New Deal. Based on archival research, it demonstrates that the court-based strategy was deeply contested and remained controversial well after the foundational First Amendment victories. Today, theories of civil liberties are premised on state neutrality in the domain of public debate; in the 1930s, the most prominent accounts demanded affirmative government intervention to correct distortions in the marketplace of ideas or to advance substantive rights. In examining these forgotten traditions, the article highlights the close and unexplored connection between civil liberties and organized labor during the New Deal. Surprisingly, early proponents of civil liberties understood the term to encompass, above all, the rights to organize, picket, and strike. Reconstructing the competing visions of civil liberties and their optimal enforcement before and after the “Constitutional Revolution” reveals the anticipated trade-offs of the judicial strategy, with important implications for theoretical accounts of constitutional change.

December 26, 2014 | Permalink | Comments (0)

Thursday, December 25, 2014

"Valuable Lies"

The title of this post comes from this intriguing paper, the abstract of which states:

Should a Muslim employee who falsely stated in his job interview that he is Christian in order to avoid discrimination be fired for his dishonesty? Should a buyer of a tract of land who conducted an expensive investigation before contracting that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land's mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead in the public interest? In all of these cases, and many others, parties are allowed not to disclose material information to an interested party but not to lie about the same information.

This article makes the argument that in many contexts, where non-disclosure is permitted lies should also be tolerated, for otherwise the social goals sought by allowing non-disclosure are frustrated. With this as its starting point, the article develops a theory of valuable lies, discussing the conditions under which lies should be permitted. It analyzes the main impediments to allowing lies, the most important of which being the risk that permitting lies would impair truth-tellers' ability to reliably convey truthful information. The article applies the theory to various fields, including contract law, tort law, medical malpractice, criminal law and procedure, and constitutional law. It concludes by proposing changes to the law that will allow telling valuable lies in well-defined categories of cases.

December 25, 2014 | Permalink | Comments (0)

Wednesday, December 24, 2014

"Partisan Gerrymandering and the Efficiency Gap"

The title of this post comes from this recent paper, the abstract of which states:

The usual legal story about partisan gerrymandering is relentlessly pessimistic. The courts did not even recognize the cause of action until the 1980s; they have never struck down a district plan on this basis; and four sitting Justices want to vacate the field altogether. The Supreme Court’s most recent gerrymandering decision, however, is the most encouraging development in this area in a generation. Several Justices expressed interest in the concept of partisan symmetry — the idea that a plan should treat the major parties symmetrically in terms of the conversion of votes to seats — and suggested that it could be shaped into a legal test.

In this Article, we take the Justices at their word. First, we introduce a new measure of partisan symmetry: the efficiency gap. It represents the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. It captures, in a single tidy number, all of the packing and cracking decisions that go into a district plan. It also is superior to the metric of gerrymandering, partisan bias, that litigants and scholars have used until now. Partisan bias can be calculated only by shifting votes to simulate a hypothetical tied election. The efficiency gap eliminates the need for such counterfactual analysis.

Second, we compute the efficiency gap for congressional and state house plans between 1972 and 2012. Over this period as a whole, the typical plan was fairly balanced and neither party enjoyed a systematic advantage. But in recent years — and peaking in the 2012 election — plans have exhibited steadily larger and more pro-Republican gaps. In fact, the plans in effect today are the most extreme gerrymanders in modern history. And what is more, several likely will remain extreme for the remainder of the decade, as indicated by our sensitivity testing.

Finally, we explain how the efficiency gap could be converted into doctrine. We propose setting thresholds above which plans would be presumptively unconstitutional: two seats for congressional plans and eight percent for state house plans, but only if the plans probably will stay unbalanced for the rest of the cycle. Plans with gaps above these thresholds would be unlawful unless states could show that the gaps either resulted from the consistent application of legitimate policies, or were inevitable due to the states’ political geography. This approach would neatly slice the Gordian knot the Court has tied for itself, explicitly replying to the Court’s “unanswerable question” of “how much political...effect is too much.”

December 24, 2014 | Permalink | Comments (0)

Tuesday, December 23, 2014

"Professional Speech"

The title of this post comes from this compelling paper by Professor Claudia Haupt, the abstract of which states:

Professionals speak in the course of exercising their profession. Yet, the State regulates the professions all the time. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive account of the doctrinal and theoretical basis of professional speech and its application to controversial First Amendment questions.

First Amendment protection for professional speech rests on distinctive theoretical justifications and the key to understanding professional speech lies in understanding the character of the learned professions. This Article suggests that the professions be thought of as knowledge communities. Conceptualizing the professions as knowledge communities not only informs the justifications for First Amendment protection but also the limits of that protection, the permissibility of regulation of the professions, and the imposition and extent of tort liability for professional malpractice.

December 23, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (1)

Monday, December 22, 2014

"Religious Exemptions and the Limited Relevance of Corporate Identity"

The title of this post comes from this recent paper by Professors Ira Lupu and Robert Tuttle, the abstract of which states:

Corporate religious liberty appears to be on the rise. The Supreme Court’s unanimous decision in Hosanna Tabor v. EEOC (2012) energized sweeping theories about “freedom of the church.” The Court’s more controversial decision in Burwell v Hobby Lobby Stores, Inc. (2014) determined that for-profit entities may be legally entitled to claim a corporate religious character. Speaking in the language of rights, commentators have vigorously debated the foundations and meaning of these decisions.

This chapter argues that these debates are misdirected. The special treatment of religion in American constitutional law does not properly rest on any theory that religious entities enjoy a distinctive set of rights. Instead, the relevant limitation on government arises from the Constitution’s Establishment Clause. The governing principle, deeply grounded in history, can best be understood as a prohibition on government involvement – through regulation or financial support – in “purely and strictly ecclesiastical matters.” That principle (developed at greater length in our book, Secular Government, Religious People) explains why the government may not decide, for example, who is fit for ministry or which faction within a church is acting in fidelity to its original teachings. The principle applies with equal force to the state’s relationship with houses of worship, religious non-profit institutions such as schools or charities, and for-profit businesses whose owners assert a corporate religious character. The only legally relevant differences among these types of organizations should be derived from the likelihood that the principle will be implicated in any particular case.

After reviewing the 19th century underpinnings of this singular approach, and offering pertinent reminders of limits on state financial support for religious teaching, the chapter focuses primarily on the context of employment regulation. Along the way, the chapter addresses concrete questions, such as whether a for-profit business can ever successfully assert a ministerial exception with respect to any of its employees. The answer may surprise you.

December 22, 2014 in First Amendment, Freedom of Religion | Permalink | Comments (0)

Sunday, December 21, 2014

"Abortion and the Constitutional Right (Not) to Procreate"

The title of this post comes from this paper by Professor Mary Ziegler, the abstract of which states:

With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance.

This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid unwanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.

This article uses the legal history of struggle over spousal consent abortion restrictions as a new way into the debate about the relationship between ART and existing reproductive rights. Such laws would require women to notify or obtain consent from their husbands before a doctor can perform an abortion. Scholars use spousal-consultation laws to illustrate the sex stereotypes supposedly underlying all abortion restrictions. This article tells a far more complex story. When feminists and pro-lifers battled about spousal consent in the 1970s, they wrestled with many of the questions motivating current battles about ART: Do women enjoy a unique role in child-rearing and childbearing? Does gestation, caretaking, or a genetic connection explain the decision-making power conferred on women in the context of reproduction? How could feminists reconcile demands that men perform a greater share of child-rearing with arguments that women should have the final decision on reproductive matters? By reexamining the history of the consent wars, we can gain valuable perspective on what can go right -- and wrong -- when we forge a jurisprudence based on the relationship between genetic, gestational, and functional parenthood.

The consent wars helped drive a wedge between feminist sex-equality arguments -- which challenged sex stereotypes and reproductive rights law -- which partly relied on similar generalizations about sex roles. Throughout the 1960s and 1970s, legal feminists pushed new laws on publicly funded child care and pregnancy discrimination in a quest to assign more caretaking responsibility to men and to the State. Feminists believed that separating women's gestational and functional parenthood would help root out damaging sex stereotypes and dramatically expand women's role in the political, economic, and social spheres.

The consent wars flipped this project on its head: for both strategic and ideological reasons, feminists assumed a more traditional vision of the roles, rights, and responsibilities of both mothers and fathers. Feminists argued that women had a unique role not only in the context of gestation but also in the context of child-rearing. While these contentions strengthened the constitutional case against spousal consent laws, they were unnecessary. Without contradicting their support for equal parenting responsibilities, feminists could have stressed that the law did not treat the fetus as a child. Consequently, a man's interest in equal parenting might have looked quite different before, rather than after, viability. Moreover, conflating gestational and functional parenthood had damaging, unintended consequences, entrenching sex stereotypes about gender roles at the heart of abortion jurisprudence.

In chronicling the consent wars, we can gain a better understanding of the proper relationship between ART and the existing constitutional framework governing reproduction. As feminists recognized in the 1960s and 1970s, pregnancy -- not the burdens of caretaking or genetic parenthood -- puts women in a unique biological and social position. In the 1970s, by reading a broader understanding of women's disproportionate share of parenting into Roe v. Wade, feminists inadvertently created an opening for courts to fall back on deeply rooted stereotypes about women's role in the home. To avoid this trap in ART cases, we should read abortion jurisprudence as standing for the connection between sex equality and women's gestational role. The consent wars powerfully demonstrate the costs feminists can face when they fail to unbundle women's genetic, gestational, and functional parenthood.

Conversely, ART jurisprudence spotlights the path not taken by feminists during the consent wars. Separating the strands of parental rights allows us to define women's equal citizenship concerns in abortion with greater precision. Because only women can carry pregnancies to term, abortion bans necessarily implicate women's interest in equal treatment, regardless of who takes on caretaking responsibilities after childbirth. Equally important, the injuries associated with unwanted pregnancy itself -- to bodily integrity, dignity, and autonomy -- can justify a woman's right to abortion regardless of who assumes caretaking responsibilities later in life.

December 21, 2014 in Abortion | Permalink | Comments (1)

Saturday, December 20, 2014

"The Two Trends that Matter for Party Politics"

The title of this post comes from this intriguing essay by Professors Joseph Fishkin and Heather Gerken, the abstract of which states:
 
In this essay, Professors Fishkin and Gerken argue that the Supreme Court’s deregulation of the campaign-finance system is fueling a shift toward "shadow parties" -- groups that are separate from the formal party apparatus but run by party insiders and central to the workings of the party writ large. They argue that the roots of this trend are to be found, paradoxically, not in the two parties’ weakness but in their strength. Contrary to the emerging conventional wisdom in the field, the authors suggest that the Court’s 2014 decision in McCutcheon v. FEC will do little to arrest this trend. The essay closes with a brief exploration of the trend’s normative implications. This essay is a version of a talk presented at the 2014 Brennan Center Convening, Money in Politics 2030: Toward a New Jurisprudence.

Note: This essay is a version of a talk presented at the 2014 Brennan Center Convening, Money in Politics 2030: Toward a New Jurisprudence.

December 20, 2014 in Election Law, First Amendment, Freedom of Speech | Permalink | Comments (0)

Friday, December 19, 2014

"Due Process of Administration: The Problem of Police Accountability"

The title of this post comes from this recent paper by Professors Charles Sabel and William Simon, the abstract of which states:

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the ways in which actors exercise their discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with independent developments in public administration. We illustrate the doctrinal and administrative changes with a study of policing. We discuss court-supervised reforms in New York and Cincinnati as examples of contrasting trajectories that these developments can take. Both initiatives are better understood in terms of an implicit duty of responsible administration than as an expression of any particular substantive right. However, the Cincinnati intervention reaches more deeply into core administrative practices and indeed mandates a particular crime control strategy – Problem-Oriented Policing. As such, it typifies a more ambitious type of structural civil-rights intervention that can be found in other areas.

December 19, 2014 | Permalink | Comments (0)

Wednesday, December 17, 2014

"Death, Desuetude, and Original Meaning"

The title of this post comes from this paper by Professor John Stinneford, the abstract of which states:

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to long usage,” or “cruel and new.” The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law. This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become “unusual” if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago.

December 17, 2014 in Theories of Punishment | Permalink | Comments (0)

Wednesday, December 10, 2014

"Dynamics of Intervention in the War on Drugs: The Build-Up to the Harrison Act of 1914"

The title of this post comes from this intriguing legal history paper, the abstract of which states:

The economics literature cites the Harrison Narcotics Tax Act of 1914 as the start of the War on Drugs. With few exceptions, the literature fails to explain the dynamic nature of interventionism. This paper a dynamic model of interventionism to show that legislation passed in the late 19th century produced unintended consequences that ultimately led to the passage of the Harrison Act.

December 10, 2014 | Permalink | Comments (0)

Tuesday, December 9, 2014

"The Anti-Bottleneck Principle in Employment Discrimination Law"

The title of this post comes from this paper by Professor Joseph Fishkin, the abstract of which states:

State legislatures and the Equal Opportunity Employment Commission (EEOC) have moved in parallel in recent years to provide new protections for the employment prospects of some surprising groups: people who are unemployed, people who have poor credit, and people with past criminal convictions. These new protections confound our usual theories of what antidiscrimination law is about. These groups are disanalogous in a variety of respects to groups defined by such characteristics as race, sex, and national origin. But the legislators and regulators enacting these new protections were responding to pervasive problems they observed in the opportunity structure of our society — problems of a particular kind that I call bottlenecks. Essentially, these legal actors judged that poor credit, unemployment, and past criminal convictions were having too outsized an effect on a person’s employment prospects. If many or most employers demand good credit, then good credit becomes a serious bottleneck: a narrow place through which workers must pass to reach a wide range of opportunities on the other side. 

This Article argues that the anti-bottleneck principle — the principle that the law ought to ameliorate severe bottlenecks in the opportunity structure where it can feasibly do so — is not only a way of understanding these new, cutting-edge protections, but also a way of understanding much of the project of Title VII and our existing body of antidiscrimination law. This Article explores the role the anti-bottleneck principle plays in legislators’ decisions to enact antidiscrimination laws and in decisions by judges and by the EEOC about how to interpret and enforce such laws. The Article argues that the anti-bottleneck idea is at the heart of both disparate treatment law and disparate impact law — and that it should cause us to think differently about the function of disparate impact law. The EEOC lawyers who started down the path that led to Griggs v. Duke Power understood that general ability tests were becoming a major bottleneck in the opportunity structure. By limiting the use of those tests, Griggs ameliorated a bottleneck that had arbitrarily constrained the opportunities of many whites as well as blacks. 

Finally, turning from the positive to the normative, this Article defends the central — if previously unacknowledged — role that the anti-bottleneck principle plays in our law of equal employment opportunity. It is a profound challenge for any legal system to promote “equal opportunity” in a world of pervasive difference and inequality, where the mechanisms that perpetuate inequality shift over time. The anti-bottleneck principle turns out to be a strong and surprisingly practical response to these challenges.

December 9, 2014 | Permalink | Comments (1)

Monday, December 8, 2014

"The (Non-)Right to Sex"

The title of this post comes from this recent paper by Professor Mary Ziegler, the abstract of which states:

What is the relationship between the battle for marriage equality and the expansion of sexual liberty? Some see access to marriage as a quintessentially progressive project — the recognition of the equality and dignity of gay and lesbian couples. For others, promoting marriage or marital-like relationships reinforces bias against individuals making alternative intimate decisions. With powerful policy arguments on either side, there appears to be no clear way to advance the discussion.

By telling the lost story of efforts to expand sexual liberty in the 1960s and 1970s, the Article offers a new way into the debate. The marriage equality struggle figures centrally in a longer narrative about the omission of sex — rather than committed relationships or marriage — from the constitutional canon. By recapturing this narrative, we can identify powerful doctrinal constraints confronting the contemporary marriage equality movement. As importantly, the story of the non-right to sex provides a compelling historical parallel to the contemporary marriage equality movement. The mistakes of past decades illuminate the dangers inherent in contemporary marriage-equality tactics.

The Article begins the story of the non-right to sex in the 1960s and 1970s, when groups like the ACLU and NAACP confronted a backlash against a perceived increase in illegitimacy rates. Some attorneys and activists viewed the illegitimacy backlash as evidence of the intersectionality of race discrimination, sex discrimination, and the denial of sexual freedom. Often, however, feminists and civil rights attorneys presented themselves as defenders of conventional sexual morality, arguing that the reform of laws on illegitimacy, contraception, and abortion would strengthen or leave intact traditional sexual norms. These arguments helped progressives achieve incremental progress. At the same time, progressives inadvertantly reinforced the State’s ability to regulate sexual behavior.

For the marriage equality movement, this history offers a cautionary tale. Efforts to achieve incremental social and legal change have obvious advantages: these strategies appeal to cautious courts and reduce the odds of backlash. At the same time, as the materials considered here make plain, incremental strategies can strengthen the status quo. In the 1960s and 1970s, progressives paid lip service to the evils of illicit sex in an effort to chip away gradually at discrimination against minorities, sexual dissenters, and women. This tactic had unexpected consequences, since cause attorneys helped to entrench an existing intimate hierarchy. As this history counsels, incremental litigation strategies adopted by the marriage equality movement may have a profound cost of their own.

December 8, 2014 in Same-sex marriage | Permalink | Comments (0)