Antidiscrimination Law
The Proper Role of Equality in Constitutional Adjudication: The Cathedral’s Missing Buttress
This Feature argues that constitutionally unenumerated yet nonetheless fundamental rights require judicial protection, but only from unequal infringements. Because these infringements often result from nondiscriminatory motives, particularly the desire for benefits without cost, current law doesn’t provide protection. This Feature explores a novel proposal for judicial protection for these rights.
Antiracist Expert Evidence
This Article introduces “antiracist expert evidence,” an underutilized tool to prove racism in court. Based on a nationwide survey of defense attorneys, it explores the evidence’s utility, identifies barriers to use, and offers strategies to overcome them, aiming to begin to level the evidentiary playing field for criminal defendants.
Disestablishment at Work
After several decades, the Supreme Court has revised its interpretation of employment-discrimination law requiring religious accommodations, creating waves of new litigation. Latent in the doctrine, principles of nondisparagement, reciprocity, and proportionality can guide courts in resolving these claims while also anchoring nonjudicial strategies to protect employees’ basic rights.
Intersex, Trans, and the Irrationality of Gender-Affirming-Care Bans
This Article provides a comprehensive legal analysis of gender-affirming-care bans, concluding that their internally inconsistent treatment of trans-affirming care and coercive intersex-normalizing interventions renders them irrational and thus unconstitutional under even rational-basis review. We further provide a normative vision for bodily self-determination to support both trans and intersex interests.
The Church’s Treaties: How the Holy See Makes and Shapes International Law
The Catholic Church has concluded close to two hundred treaties in the last sixty years with nations across the globe. Many of these agreements integrate Church doctrine into state legal systems at the expense of LGBTQ rights. This Note unearths this vast treaty regime—and suggests ways to challenge it.
Against the Work-Study Boundary: Synthesizing Title VII and Title IX Protections for Student-Employees
Courts routinely deny student-employees facing sex discrimination the expansive Title VII protections they deserve, and student-employees often fail to bring Title IX claims that more fulsomely capture this discrimination. Looking forward, courts should synthesize Title VII’s protections with Title IX’s coverage by considering education-based evidence when evaluating Title VII claims.
A Legislative Response to 303 Creative
States should respond to the U.S. Supreme Court’s 303 Creative decision by enacting implied warranties of nondiscrimination. Making nondiscrimination a publicly disclaimable default would facilitate informed consumer choice and mitigate the dignitary harms of point-of-sale discrimination.
The Invention of Immigration Exceptionalism
Everyone believes that immigration law has been exceptional since its late nineteenth-century birth—insulated from judicial review by the Court’s creation of the “plenary power doctrine.” But early immigration law was actually ordinary public law. Recovering this reality has profound implications for scholars of immigration and public law alike.
Prisons as Laboratories of Antidemocracy
Jeffrey Bellin's Mass Incarceration Nation robustly analyzes how state and federal policies have combined to drive up prison populations. Mass incarceration represents a failure of democracy, but the repressive policies of American prisons represent an even graver threat as laboratories of antidemocracy that export these policies to the body politic.
Can We Save Our Foodways? The Inflation Reduction Act, Climate Change, and Food Justice
This Essay examines USDA programs supported by the Inflation Reduction Act and its approach toward addressing climate change and historical funding inequities for Indigenous and Black Farmers. It also argues for how the next Farm Bill can expand upon these efforts to further address inequities and promote climate resilience.
The Unabridged Fifteenth Amendment
The Fifteenth Amendment is usually an afterthought compared to the Fourteenth Amendment. This oversight is perplexing: the Fifteenth Amendment ushered in a brief period of multiracial democracy and laid the constitutional foundation for the VRA. This Article completes the historical record, providing an unabridged accounting of the Fifteenth Amendment’s adoption.
An Expansive View of “Federal Financial Assistance”
Thanks to an ambiguity in civil-rights statutes passed under Congress’s spending power, many programs enjoy ample financial benefits while avoiding the requirements of federal antidiscrimination laws. This Essay argues that the remedy lies in a statutory reading that aligns with the expansive nature of the civil-rights statutes themselves.
“We Do No Such Thing”: 303 Creative v. Elenis and the Future of First Amendment Challenges to Public Accommodations Laws
In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws.
Seeking Equity in Electronic Monitoring: Mounting a Bearden Challenge
In Bearden v. Georgia, the Supreme Court held a defendant cannot be imprisoned for failure to pay a fine they could not afford. Yet, many defendants remain incarcerated because they cannot pay for Electronic Monitoring. This Comment seeks to remedy that disparity by applying Bearden to Electronic Monitoring requirements.
Protecting Transgender Youth After Bostock: Sex Classification, Sex Stereotypes, and the Future of Equal Protection
This Note argues that Bostock v. Clayton County’s holding under Title VII—anti-LGBT discrimination is sex discrimination—applies under equal-protection analysis. It then combines Bostock with sex-stereotype reasoning to argue that recent laws and policies targeting transgender minors unconstitutionally rely on sex-based stereotypes—including that transgender minors are merely confused.
Sex Equality’s Irreconcilable Differences
Sex equality assures us that laws based on real biological differences between the sexes are not sex stereotypes about the sexes. This Feature uses LGBTQ equality to show why sex equality is wrong: laws based on real differences are sex stereotypes, all the way down.
Familial-Status Discrimination: A New Frontier in Fair Housing Act Litigation
A key exception to the Fair Housing Act’s prohibition of familial-status discrimination has allowed municipalities to weaponize senior-only housing to block the construction of affordable housing and perpetuate segregation. This Note documents this practice, offers a framework for advocates to challenge it through litigation, and proposes policy solutions.
Disparate Limbo: How Administrative Law Erased Antidiscrimination
Does administrative law have a racial blind spot? Ceballos, Engstrom, and Ho examine “disparate limbo”: how claims that agencies caused racial disparities have come to evade review under both antidiscrimination and administrative law, and how ignoring race may have helped build modern administrative law’s empire.
Reckoning with Race and Disability
Intersectionality surfaces the experiences of disabled people of color, but it tells us less about the malleability of this type of discrimination. This Essay contends that aesthetic theories of structural subordination can supplement emerging discussions on intersectionality by underscoring the visual and emotional roots of racial and disability discrimination.
Equality Metrics
For decades firms have asserted their support for diversity efforts but struggled to achieve increased demographic diversity. This Essay argues that institutional investors should require firms to disclose information regarding the current demographic diversity of their workforces and supply chains, as well as measurable, specific plans to improve racial equity.