Antidiscrimination Law
Disability Law and HIV Criminalization
Over thirty states maintain laws that criminalize people living with HIV, exposing them to incarceration, fines, and social stigma. This Note argues that many such laws violate the ADA’s ban on public discrimination. While previous challenges to HIV-criminalization laws have failed, federal disability law offers a new pathway for reform.
Disability Law and the Case for Evidence-Based Triage in a Pandemic
When lifesaving medical treatments are scarce, disability law permits triage policies to consider patients’ probability of survival and post-treatment life expectancy. Evidence-based triage that considers these factors, rather than inaccurate stereotypes, can be not only legal and ethical, but consonant with the goals of disability law and advocacy.
Who Gets the Ventilator? Disability Discrimination in COVID-19 Medical-Rationing Protocols
The coronavirus pandemic has forced us to take the threat of rationing life-saving treatments seriously. Many health systems employ protocols that explicitly deprioritize people for these treatments based on pre-existing disabilities. This argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act.
Respect, Individualism, and Colorblindness
The “colorblind” approach to equal protection purports to treat people as individuals. This Article excavates the philosophical foundations of that idea and argues that the Supreme Court has misconceived it. If the Court pursues colorblindness, it should do so not with indignation but with ambivalence and regret.
Sex as a Pedagogical Failure
This Feature offers an account of what is wrong with consensual professor-student sex. Such sex constitutes a failure, on the professor’s part, to satisfy the duties that arise from the practice of teaching. It often also feeds on and reinforces women students’ second-class standing in the university.
After Suffrage: The Unfinished Business of Feminist Legal Advocacy
This Essay chronicles Pauli Murray’s intersectional feminist legal advocacy, which transformed post-suffrage women’s citizenship and continues to shape an ambitious and urgent agenda for universal enfranchisement in the Nineteenth Amendment’s second century.
Lessons from the Suffrage Movement in Iran
The women’s suffrage movement in Iran achieved the vote in 1963, several decades after women in the United States. The challenges and opportunities in Iranian women’s fight for equal rights offer insight into the complex and often fraught politics of calling for women’s rights and participation in a non-Western context.
The Nineteenth Amendment and the Democratization of the Family
Women’s claim to vote advanced a broader effort to democratize the family. This Essay recovers debates over the family connecting the Reconstruction Amendments and the Nineteenth Amendment, and considers how this lost history might guide the Constitution’s interpretation in courts and politics today.
Reconstituting the Future: An Equality Amendment
A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the amendment is offered.
Pushed Out and Locked In: The Catch-22 for New York’s Disabled, Homeless Sex-Offender Registrants
New York’s poor, disabled sex-offender registrants are ensnared in a cruel catch-22: New York will not release them from prison without housing, but laws and policies make finding housing nearly impossible for this population. This Essay explores potential legal challenges to New York’s harmful, counter-productive, and unlawful regime.
An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection
Examining a long-overlooked passage on gender in Justice Powell’s Bakke concurrence, the Essay applies the theory of intersectionality to show that Justice Powell’s reasoning was flawed. As his “single-axis” approach reveals, tiers-of-scrutiny analysis creates a doctrinal puzzle in equal-protection law, especially when applied to Black women.
Disparate-Impact Liability for Policing
This Note develops the first analysis of the Safe Street Act’s (SSA’s) antidiscrimination power and argues that the SSA imposes disparate-impact liability on police departments. When conventional legal tools have proven inadequate in curbing disparate policing, the SSA presents an unrecognized path toward police reform.
Sex in Public
This Article provides the first history of sex discrimination in public accommodations. Fifty years ago, bars displayed “men-only” signs. Women held secondary status in leisure, professional, and financial institutions. In the 1970s, feminists challenged this discrimination. Sex equality came to signify equal access, freedom from sexual norms, and institutional transformation.
Gender-Identity Protection, Trade, and the Trump Administration: A Tale of Reluctant Progressivism
This Essay discusses the inclusion of gender-identity protections in the Trump Administration’s “new NAFTA,” hypothesizing that these provisions were initially included without consulting important executive-branch stakeholders. Intriguingly, these protections demonstrate that trade agreements can lead even powerful governments to make value-laden commitments at odds with their own domestic agendas.
While They Waited: Pre-Obergefell Lives and the Law of Nonmarriage
This Essay looks at married same-sex couples who, pre-Obergefell, spent time in nonmarital relationships while awaiting the right to wed. In discussing how courts now count those pre-equality years toward the length of couples’ relationships—a decision relevant to adjudicating many benefits—the Essay illuminates weaknesses in current nonmarriage law.
Bias In, Bias Out
The rise of criminal justice risk assessment has generated concerns about its disparate racial impact. Yet the prevailing responses to this problem, this Article contends, are inadequate. The real issue is the nature of prediction itself, and this demands a fundamental rethinking of risk assessment in our criminal justice system.
The Reverse-Entanglement Principle: Why Religious Arbitration of Federal Rights Is Unconstitutional
Several courts have compelled religious arbitration of employment disputes even when the arbitration agreement explicitly states that holy text would trump federal law. This Comment articulates a “reverse-entanglement” principle that explains why courts violate the Establishment Clause when they enforce arbitral decisions that apply religious principles to secular-law disputes.
Disparate Impact, Unified Law
Lower federal courts have recently converged on a two-part test for vote denial claims under section 2 of the Voting Rights Act. Yet this status quo is doctrinally incoherent and constitutionally vulnerable. Courts, this Article contends, should look to disparate impact law to address these problems and preserve section 2.
State Courts and Constitutional Structure
Justice Goodwin Liu of the California Supreme Court reviews Judge Jeffrey Sutton’s new book, 51 Imperfect Solutions: The Making of American Constitutional Law.
The New Jim Crow Is the Old Jim Crow
A vast divide exists in the national imagination between the racial struggles of the civil rights era and those of the present. Drawing on the work of Elizabeth Gillespie McRae and Jeanne Theoharis, this Review argues that complexifying this oversimplified history is critical to contemporary racial equality work.