Civil-Rights Law
Civil Rights Litigation and Social Reform
[Editor's Note: Civil Rights Litigation and Social Reform is a Response to Kenneth W. Mack, The Myth of Brown?, Yale L.J. (The Pocket Part), Nov. 2005, http://www.thepocketpart.org/2005/11/mack.html.]
Equal Justice-Same Vision in a New Day
[Editor's Note: Equal Justice—Same Vision in a New Day is a Response to Kenneth W. Mack, The Myth of Brown?, Yale L.J. (The Pocket Part), Nov. 2005, http://www.thepocketpart.org/2005/11/mack.html.]
Civil Rights, Antitrust, and Early Decision Programs
115 Yale L.J. 880 (2006) Early decision admission programs--which allow a student to receive early notification of admission in return for a commitment to attend a particular institution--enjoyed explosive popularity at America's institutions of higher education in the 1990s. Schools use the programs to stabilize class size and identify enthusiastic applicants. The programs, however, favor students who are wealthier and whiter than their regular decision classmates. This Note applies civil rights and antitrust principles to discuss serious legal concerns raised by early decision programs.
Rethinking Civil Rights Lawyering and Politics in the Era Before Brown
115 Yale L.J. 256 (2005) This Article argues that scholarly accounts of civil rights lawyering and politics have emphasized, incorrectly, a narrative that begins with Plessy v. Ferguson and ends with Brown v. Board of Education. That traditional narrative has relied on a legal liberal view of civil rights politics--a view that focuses on court-based and rights-centered public law litigation. That narrative has, in turn, generated a revisionist literature that has critiqued legal liberal politics. This Article contends that both the traditional and revisionist works have focused on strains of civil rights politics that appear to anticipate Brown, and thus have suppressed alternative visions of that politics. This Article attempts to recover these alternatives by analyzing the history of civil rights lawyering between the First and Second World Wars. It recovers debates concerning intraracial African-American identity and anti-segregation work, lawyers' work and social change, rights-based advocacy and legal realism, and the legal construction of racial and economic inequality that have been elided in the existing literature. It thus contends that the scholarly inquiries that have been generated in both the traditional and the revisionist work should be reframed.
To Insure Prejudice: Racial Disparities in Taxicab Tipping
114 Yale L.J. 1613 (2005) Many studies have documented seller discrimination against consumers, but this Essay tests and finds that consumers discriminate based on the seller's race. The authors collected data on more than 1000 taxicab rides in New Haven, Connecticut in 2001. After controlling for a host of other variables, they find two potential racial disparities in tipping: (1) African-American cab drivers were tipped approximately one-third less than white cab drivers, and (2) drivers who are "rational" statistical discriminators would expect African Americans to tip 56.5% less than white passengers (African-American passengers are also 3.7 times more likely than white passengers to leave no tip). Both black and white passengers participated in the discrimination against black drivers. These findings suggest that government-mandated tipping (via a "Tip Included" decal) might reduce two different types of disparate treatment. First, mandated tipping would directly reduce the passenger discrimination against black drivers documented in this Essay. Second, mandated tipping might indirectly reduce the widely documented tendency of drivers to refuse to pick up black passengers.
Judicial Power and Civil Rights Reconsidered
114 Yale L.J. 593 (2004) Michael Klarman's From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of the twentieth century, the Supreme Court was very reluctant to rule in favor of African-American civil rights claimants and had little impact when it did. Klarman is right to reject traditional accounts that greatly exaggerated the Supreme Court's willingness and ability to protect minorities. However, he overstates his case. The Court's views on the proper scope of African Americans' rights periodically diverged from those of the political branches of government. The Justices' relative insulation from political pressure, their membership in a different generational cohort than the median voter, the idiosyncrasies of presidential selection of Justices, and the Justices' nationalist inclinations all help explain this result. Moreover, in at least three types of situations, judicial invalidation of Jim Crow legislation significantly aided African Americans: (1) when such legislation had solved collective action problems among racist whites, (2) when legislation had enabled white actors to externalize the costs of Jim Crow onto society as a whole, and (3) when laws lowered the overall costs of maintaining Jim Crow. This Review supports these conclusions by closely examining relevant Supreme Court decisions, especially Progressive Era cases and Brown v. Board of Education.
"Hostility to the Presence of Women": Why Women Undermine Each Other in the Workplace and the Consequences for Title VII
113 Yale L.J. 1579 (2004) When women undermine and undercut each other, vying for advancement, they are reacting to workplace segregation and low organizational power. Employers must work to integrate workplaces to the best of their abilities, ensuring that women are present in ample numbers at all levels of the organization. They must ensure that women hold positions of authority, supporting them if they are undermined from above or below. When full integration is not possible (as in fields where there are few women in the labor pool), employers must ensure that the women hired are protected from loyalty tests or intentional comparisons to other women that lead to dissociation. Yet responsibility for eradicating workplace segregation lies not only with employers, but with federal courts as well: Female-on-female sexual harassment demands redress under Title VII. Critics may question why Title VII, and harassment law more specifically, should be used to address female-on-female hostility-based harassment. The answer is twofold: Such harassment falls squarely within the scope of Title VII, and its coverage remains true to the statute's purpose of eradicating barriers to advancement for women and minorities. As detailed earlier, the sexual harassment hostile work environment cause of action now covers all sex-based harassment that satisfies the required elements. It has developed to cover behaviors that were not originally envisaged by the drafters of the statute, including same-sex harassment. In the aftermath of Oncale, there is little doubt that hostility-based sex harassment among women would be actionable under Title VII. However, hostile work environment claims should be used against female-on-female hostility not just because they can be, but because doing so helps achieve the original purpose of Title VII. Title VII was created with the intention of reducing segregation and eliminating the barriers that stand in the way of women and minority success in the workplace. Female-on-female hostility-based harassment both results from and perpetuates sex segregation and limited opportunities for women in the workplace. Thus, to the extent that employers structure the workplace in ways that give female employees incentives to compete with and undermine each other, they should be held responsible for violating the mandates of Title VII. Some may argue that Title VII's prohibition of discrimination based on sex was meant to address male supremacy, and that a recognition of female-on-female harassment would be a significant departure from Title VII's goal. However, legal recognition of female-on-female sex harassment does work to combat male supremacy in the workplace. As explained throughout this Note, the exclusion of women from male-dominated jobs and from positions of authority creates hostile relations among women in the workplace. Holding employers liable for the dynamics that they have created among women shifts the focus back to segregation, and thus creates additional incentives for employers to integrate their workplaces and empower female workers. Others may fear that liability will lead employers to regulate female relationships and potentially overdiscipline women workers. Some may even worry that if women do opportunistically undermine each other, recognition of female-on-female harassment will simply give them another tool with which to do so: the ability to "run to daddy" and complain about other women to their bosses. Yet all harassment claims carry the potential for abuse; the fear of unfounded accusations or overexuberant enforcement should not deter courts from extending protection to those deserving of it. A woman experiencing discrimination because of her sex should not remain without recourse merely because the person harassing her is also female. Discrimination based on sex is prohibited by Title VII, and so long as a woman can prove the elements necessary for a successful hostile work environment claim, she should have a cause of action. It would be a welcome change for employers to regulate hostile behaviors among women when many currently refuse to intervene in behaviors "between girls." Women should not have to constantly tiptoe around each other. Instead, they should be aware of the factors that encourage them to compete with each other, recognizing that they can help each other advance and that the success of one can lead to the success of another. With healthy competition, women can push each other to do their best, supporting each other in the face of conditions that would have others thinking that it's every man for himself.
Race as Mission Critical: The Occupational Need Rationale in Military Affirmative Action and Beyond
113 Yale L.J. 1093 (2004) In Grutter v. Bollinger, the much-anticipated case challenging affirmative action practices at the University of Michigan Law School, the Supreme Court held for the first time that "obtaining the educational benefits that flow from a diverse student body" represents a compelling state interest. Adopting much of Justice Powell's analysis from the landmark Bakke case, the Grutter majority emphasized that racial diversity within a student body promotes the "'robust exchange of ideas,'" and renders classroom discussions "'more enlightening and interesting.'" The Court further reasoned that universities deserve substantial leeway in making admissions decisions because they are uniquely positioned to assess the pedagogical values associated with racial diversity. Notably, however, the Court did not confine its analysis of the educational benefits of diversity to matters concerning the quality of the educational experience at the University of Michigan. Rather, it relied heavily on a separate strand of argument that emphasized the need to produce students whose training or experience "'prepares them as professionals'" to function effectively within "'an increasingly diverse workforce.'" To underscore this point, the Grutter majority described the American military's reliance on race-conscious recruitment and admissions policies for its service academies and Reserve Officer Training Corps (ROTC) programs. Citing claims raised by a group of retired military personnel in an amicus filing, the Court intimated that the return to a racially homogenous officer corps would compromise the military's ability to provide national security. From here, "'only a small step'" was required for the Court to conclude that the "'country's other most selective institutions'" likewise depend on racially diverse leadership to ensure their continued success. Hence, the majority explained that in the realm of business, "exposure to widely diverse people, cultures, ideas, and viewpoints" cultivates skills necessary to succeed in today's "increasingly global marketplace." Likewise, it described the visible presence of minority lawyers in the upper echelons of politics and the judiciary as crucial to the public's continued confidence in these institutions. What is striking about these claims is that they regard the project of diversifying higher education as a means of populating the professional ranks with a new generation of racially diverse, or at least racially attuned, leaders. In effect, it is the Court's appeal to these occupational needs for diversity, as opposed to the intrinsic importance of cross-racial understanding, that forms much of the basis for its conclusion that the educational benefits of diversity constitute a compelling state interest. The notion that racially diverse leadership contributes to the functionality of certain professions is not a recent innovation. Rather, such claims have been advanced by numerous industry leaders, sociologists, and historians. In the legal context, occupational need arguments have most often arisen as defenses against allegations of racially biased hiring practices. Accordingly, both Congress and the courts have grappled with the question of how to strike the proper balance between catering to important occupational needs and upholding the law's broader prohibition against racial discrimination. During the legislative debate over Title VII of the Civil Rights Act of 1964, Congress resolved this dilemma by unambiguously rejecting the concept that a person's race could ever constitute a "bona fide occupational qualification" (BFOQ). Underpinning this decision was the overriding fear that employers might otherwise hire only whites, claiming that this was essential to the smooth functioning of their businesses. In light of this statutory barrier, no court has ever accepted occupational need defenses where racially discriminatory employment practices have been challenged under Title VII. Paradoxically, however, where such practices have instead been challenged on Fourteenth Amendment grounds, courts have increasingly allowed a small number of professions--such as law enforcement and prison administration--to raise valid occupational need defenses. On these occasions, judges have distinguished between employers merely catering to client preferences and those whose race-conscious decisionmaking reflects a genuine concern about the functionality of their profession. As a result of these developments, the statutory and constitutional frameworks governing racial discrimination now provide contradictory responses to occupational need defenses raised by certain professions. This inconsistency was prominently on display in the recent case of Patrolmen's Benevolent Ass'n v. City of New York, in which Judge Scheindlin found that racially motivated employment decisions furthered the state's compelling interest in effective law enforcement--thereby satisfying the first prong of the court's equal protection analysis--yet held that the police were nonetheless barred from mounting an occupational need defense under Title VII. Against this backdrop, the Grutter Court further expanded the boundaries of the constitutional occupational need defense in two important respects. First, it suggested that a profession's reliance on racially diverse representation may warrant use of race-conscious admissions procedures at the stage of professional education. Logically, those professions citing an occupational interest in the continued use of affirmative action at universities should be doubly justified in granting preferences to racial minorities who have actually graduated and entered the labor market. Rather than consider the tensions that this reasoning would generate with current Title VII law, however, the Court simply reiterated that its holding reaches only educational--rather than hiring--decisions. Second, the Grutter Court identified occupational needs for diversity in fields such as business and law, which differ substantially from the more public-safety-oriented occupations that have successfully raised occupational need defenses in the past. By grouping together professions such as business and law with the military, whose unique features have entitled it to a special exemption under Title VII, the Court proceeded on the questionable assumption that these professions are equally dependent on racially diverse leadership. These problematic implications of the Grutter Court's approach were not lost on the dissenting Justices, who warned that occupational need logic could not be easily cabined within formal educational settings or confined to the field of law. Instead, as Justice Scalia lamented, the Court's reasoning might be used to support discriminatory hiring on the ground that it injects minority representation into a profession solely to enhance the "'cross-racial understanding'" of nonminority coworkers. Wary of the potential for occupational need defenses to shield discriminatory practices across a limitless array of professions, the dissenting Justices in Grutter sided with the framers of Title VII by resisting such arguments altogether. For all its intellectual clarity, however, the Grutter dissent's categorical rejection of occupational need claims proved no more nuanced than the majority opinion. Justice Scalia's scathing critique of the Court's logic, while useful in highlighting the extremes to which occupational need arguments may be taken, recognized no contexts in which such claims could be appropriate. Conspicuously absent from his dissent was any mention of the military's distinctive justification for affirmative action. Likewise, no consideration was given to other professions that might raise compelling arguments along similar lines. Taken as a whole, the Supreme Court's discussion of occupational need in Grutter proved unsatisfactory in two respects, both of which this Note addresses. First, both the majority and the dissent adopted a polarized, all-or-nothing approach to occupational need defenses instead of acknowledging the possibility that such arguments may be persuasive in certain contexts while pernicious in others. As an alternative to the Court's stark approach, what is needed is a theoretical framework for determining when occupational need arguments should be accepted as compelling state interests and when they should be rejected as pretextual grounds for racial discrimination. This Note begins to develop such a framework through the case study of the military, the profession that has most often framed its defense of affirmative action in terms of occupational need. Once the link between racial awareness and occupational performance is more precisely understood, we may then consider what institutional features make the military particularly dependent on racial diversity. To the extent that similar features exist in other contexts, the military experience should be seen as translatable, rather than entirely exceptional. Rather than draw an arbitrary line between higher education and work settings, this Note proposes that occupational need arguments should be evaluated according to the characteristics of each profession. Taking into account the social urgency of a profession as well as the degree to which its basic functionality depends on race-conscious decisionmaking, I argue that occupational need defenses should generally be limited to a small subset of professions that address public safety matters rather than extended to encompass professions such as business and law. While the appropriate outer bounds of the occupational need defense will undoubtedly remain subject to disagreement, the Grutter Court's treatment of occupational need claims clearly overlooks crucial differences in the nature and degree to which various professions rely on racially diverse leadership. The second shortcoming of the Grutter decision lies in its failure to address the growing divide between statutory and constitutional approaches to occupational need defenses. Where racial discrimination has been alleged, there is now a pressing need for a more unified legal response to such defenses. As a simple matter of intellectual coherence, Congress and the courts should agree on the extent to which American law recognizes that a person's race may affect her ability to perform certain tasks within an organization or profession. From a judicial perspective, the current inconsistency between the statutory and constitutional precedents in this area creates unnecessary confusion, undermining the clarity and force of opinions that must address occupational need claims. Finally, in the context of public employment discrimination, where Title VII and the Fourteenth Amendment are most obviously in tension, the success of occupational need defenses turns primarily on the nature of the allegations raised, which may be a function of little more than the plaintiff's degree of legal sophistication. Rather than countenance such anomalies, we should reconsider the proper place of such arguments within antidiscrimination law more broadly. Accordingly, this Note proposes that Congress amend the language of Title VII to remove the statutory barrier against race-based bona fide occupational qualification defenses. Courts should then permit occupational need defenses only in those narrow circumstances where a profession establishes that racial discrimination is vital to the essence of its business. Where state actors differentiate on the basis of race, courts should impose the additional requirement that a profession demonstrate how its disruption would compromise public safety. By building upon the doctrinal approach used in response to similar arguments in the sex discrimination context, courts could construct a limited occupational need defense that would reduce the potential for abuse while still allowing racial preferences where they legitimately further a compelling state interest. The Grutter Court's turn toward occupational need as a prominent justification for race-conscious decisionmaking is unsettling, even for proponents of affirmative action. The doctrine of occupational need is malleable and may be used to defend forms of racial discrimination that do not comport with societally held conceptions of racial justice. Insofar as we would balk at the notion of discriminating against racial minorities for the sake of preserving an occupation's survival, we should question whether concern over occupational needs is what truly motivates our support for affirmative action policies at institutions such as the University of Michigan Law School. If instead our commitment to affirmative action stems from some deeper value, then this value should be openly acknowledged and discussed rather than hidden behind the guise of an occupational need rationale. Indeed, occupational need arguments risk diverting attention from the social justice claims that would otherwise underpin the campaign for affirmative action. For these reasons, I sympathize with the outcome in Grutter yet remain wary of expanding the occupational need rationale as it pertains to race. To warn against the potential excesses of occupational need defenses is not to preclude their use under all circumstances, however. By advocating rigorous scrutiny of occupational need claims, this Note seeks to limit such claims to situations where race-conscious measures genuinely contribute to an occupation's functionality and where the smooth operation of that occupation is of paramount interest. Part I of this Note situates the Grutter outcome within the context of the Supreme Court's earlier affirmative action jurisprudence. This Part begins by examining how the Court's understanding of what constitutes a compelling state interest has expanded to include forward-looking or nonremedial justifications for affirmative action. The remainder of the Part outlines the salient features of what I have identified as the Grutter Court's occupational need rationale for diversity. Part II considers the most serious criticisms of the occupational need rationale, comparing claims that appear in the Grutter dissents with similar arguments that have arisen in previous cases and legislative debate. Part III evaluates the case for affirmative action in military higher education with an eye toward assessing which features make certain institutions better able to invoke occupational need arguments than others. Drawing lessons from the military case study, Part IV suggests a framework for how to approach occupational need defenses in the future, arguing that a limited occupational need defense would strike the proper balance between preserving occupational performance and creating a dangerous precedent that invites invidious discrimination. Part V then advances a two-part proposal for harmonizing the statutory and constitutional approaches to occupational need defenses. It concludes by underscoring the important role that judges must play in limiting race-based occupational need defenses once the statutory barrier against such claims has been removed.
The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action
113 Yale L.J. 939 (2004) Private individuals have long played a key role in enforcing federal rights. Yet in a series of recent decisions, the Supreme Court has limited the ability of individuals to enforce federal rights through private suits. In Alexander v. Sandoval, for example, the Court held that there was no private right of action to enforce disparate impact regulations promulgated under Title VI of the Civil Rights Act of 1964. It is unclear, however, whether that decision precluded private rights of action to enforce other regulations promulgated under Title VI and comparable civil rights statutes. Even more significantly, Sandoval left unclear whether, and to what extent, federal agencies can shape private rights of action. While Sandoval's broad language implied that agencies can play only a limited role in creating private rights of action, its holding still allows substantial room for agencies to define those rights. Indeed, a recent split between the Fourth and the Eleventh Circuits illustrates that Sandoval does not necessarily preclude agencies from playing such a role. Although the Eleventh Circuit, in Jackson v. Birmingham Board of Education, held that there was no private right of action to enforce anti-retaliation regulations promulgated under Title IX of the Education Amendments of 1972, the Fourth Circuit, in Peters v. Jenney, held that a private individual can sue under Title VI of the Civil Rights Act of 1964 to enforce the anti-retaliation regulations promulgated under that statute. The critical distinction between the two courts' analyses was the significance each attached to the requirement of deference to agency regulations established by Chevron U.S.A. Inc. v. National Resources Defense Council, Inc. This Comment argues that the Fourth Circuit was correct to incorporate Chevron into its analysis, and that its decision suggests a role for agencies in creating implied private rights of action that is much greater than the one articulated in Sandoval. While Sandoval may prevent agencies from creating private rights of action by themselves, they can achieve much the same effect by expansively interpreting the statutory rights of action created by Congress. With careful regulatory and statutory drafting, agencies and Congress can--and should--capitalize on the Chevron deference shown by the Fourth Circuit in Peters v. Jenney.
Minorities, Shareholder and Otherwise
113 Yale L.J. 119 (2003) "[M]en are described as I think they are," Adolf Berle writes of his work, "rather than as they think they are." He continues: "Some will be shocked. The businessman will find that he is a politician and a commissar--perhaps even a revolutionary one. The liberal finds himself a traditionalist." My juxtaposition of the corporate lawyer and the progressive activist may strike both as surprising and even uncomfortable. But corporate law has long been described as the constitutional law for the economic state. Both corporate law and constitutional law seek to order relations between heterogeneous persons who hold stakes in a shared enterprise. Yet the parallels between the two have rarely been fully drawn. In this paper, I have begun to sketch the unexplored but immanent connections in the two domains. That the word "minority" is critical in both constitutional law and corporate law is not mere lexical coincidence. Much of life is affected by one's minority or non-minority status. On my reinterpretation, corporate law offers the same insight as critical scholarship: Law must take into account relations of domination and subordination. Corporate law already does this. Equal protection jurisprudence, at least as currently promulgated by the Supreme Court, denies it. But if there is to be a kind of grand unifying theory of corporate and constitutional law, it will turn on this insight about power.
Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act
112 Yale L.J. 1943 (2003) The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separation of powers in which the Court alone can interpret the Constitution, while Congress can use its Section 5 power only to enforce the constitutional interpretations of the Court. This Article challenges this understanding, which it calls the "enforcement model" of Section 5, and contrasts it to an alternative account, in which Congress can enact Section 5 legislation based on its own interpretation of constitutional rights, even if Congress's interpretation diverges from the Court's. The Article names this alternative account of Section 5 power the model of "policentric constitutional interpretation." For decades, Section 5 has served as a structural device that promotes policentric interpretation, and so fostered the democratic legitimacy of our constitutional order. The Article develops its claims about the enforcement and policentric models of Section 5 power in a case study of the Family and Medical Leave Act of 1993 (FMLA), the Section 5 statute at issue in Nevada Department of Human Resources v. Hibbs. The Article offers two critiques of the enforcement model. It demonstrates, first, that the enforcement model cannot generate criteria capable of distinguishing Section 5 legislation that enforces judicial interpretations of the Constitution from Section 5 legislation that enforces congressional interpretations of the Constitution. Without such criteria, judicial application of the model must depend instead on extrinsic considerations, like the Court's concerns about federalism or its attitude toward new forms of antidiscrimination law. The enforcement model thus leads to unaccountable decisionmaking, with the Court invalidating civil rights legislation on grounds that it neither names nor justifies. The Article offers a second, and more fundamental, critique of the enforcement model. The enforcement model assumes that authoritative interpretation of the Constitution is best conducted by an institution that is insulated from all contact with politics. This assumption is false. Overlapping legislative and judicial enforcement of Fourteenth Amendment rights plays an important structural role in our constitutional system because it links constitutional law to the larger constitutional culture of the nation. The Article illustrates this thesis by a case study of the mobilization of the women's movement that gave rise to modern sex equality law, including the FMLA itself. The Article shows how the movement's efforts precipitated a wave of congressional lawmaking in the 1970s that reflected a new constitutional vision of equality between the sexes. Eventually the Supreme Court followed Congress's lead and altered its Fourteenth Amendment doctrine to incorporate the evolving constitutional beliefs of the American people. Examining how Congress and the Court have in the past quarter-century each understood questions of equal protection in matters concerning conflicts between work and family illustrates important institutional differences in the ways Congress and the Court enforce constitutional rights. As this history demonstrates, Congress's political responsiveness makes it the object of social movement mobilization and a unique register of the nation's evolving constitutional understandings. The policentric model of Section 5 power holds that Congress and the Court may each consider and incorporate the other's views, while retaining autonomy in judgment, so that the Court remains free to strike down any law that it believes threatens individual liberties or impairs structural values such as separation of powers or federalism. The policentric model thus preserves both the nation's rich legacy of legislative constitutionalism and the judicially enforced rights on which we have come to depend.
Fall from Grace: Arming America and the Bellesiles Scandal
111 Yale L.J. 2195 (2002)
Reconceptualizing VAWA's "Animus" for Rape in States' Emerging Post-VAWA Civil Rights Legislation
111 Yale L.J. 1417 (2002)
To Promote the General Welfare: The Republican Imperative To Enhance Citizenship Welfare Rights
111 Yale L.J. 1457 (2002)
Covering
111 Yale L.J. 769 (2002) In this article, Professor Yoshino considers how the gay civil rights movement might enright the American civil rights paradigm, which he takes to be predicated on the paradigm classifications of race and sex. He posits that gays may be able to contribute a more robust theory of the relationship between assimilation and discrimination, a theory that takes assimilation to be an effect of discrimination as well as an evasion from it. Yoshino believes that gays may be more attuned to the discriminatory aspects of assimilation because they are capable of assimilating in more ways than racial minorities or women. Either in fact or in the imagination of others, gays can assimilate in three ways - conversion (in which the underlying identity is changed), passing (in which the underlying identity is retained but masked), and covering (in which the underlying identity is retained and disclosed, but made easy for others to disattend). Yoshino first elaborates his taxonomy of assimilationist demands in the context of orientation. He demonstrates that as discriminatory animus against gays has become weaker, so too have the demands for assimilation, which have shifted in emphasis from conversion through passing toward covering. At the same time, however, Yoshino questions whether these shifts in emphasis are substantive or merely rhetorical, positing that covering demands that target traits or behaviors constitutive of identity are tantamount to conversion demands. Deploying a postmodern theory of status performativity, Yoshino suggests that a commitment to protect certain statuses might also require the protection of traits or behaviors that might partially constiute those statuses. Yoshino then applies his theory to the contexts of race and sex. He demonstrates that antidiscrimination discourse often distinguishes between racial minorities and women on the one hand and gays on the other, in part because of the relative inability of racial minorities and women to assimilate into mainstream society. Yet Yoshino maintains that racial minorities and women are not as immune to assimilationist demands as their general inability to convert or pass may suggest, as such groups are routinely asked to cover. Indeed, Yoshino argues that enforced covering is the contemporary form of discrimination to which racial minorities and women remain the most vulnerable. Yoshino thus contends that resistance to the covering demand in the legal and political spheres is an issue around which racial minorities, women, and gays might make common cause.
Abolition Without Deliverance: The Law of Connecticut Slavery 1784-1848
111 Yale L.J. 183 (2001) According to American public memory, slavery in the United States was peculiar to the South. Unless explicitly reminded of the North's history of slavery, most Americans associate the North with abolitionists rather than slaveholders. Alongside this public memory is the work of professional historians that recognizes that slavery existed in the North during the colonial era but asserts that it was abolished during the late eighteenth century. According to such scholarship, as the Revolutionary War brought ideas of natural rights to the forefront of the American consciousness and as economic realities made Northern slavery increasingly unprofitable, states north of Maryland eliminated slavery through a series of legal measures. Some scholars who advance this narrative portray the abolition measures adopted by most Northern states as immediate and comprehensive, as though these measures effectuated the near-instantaneous eradication of slavery in each state that adopted them. In fact, though the number of slaves in the North declined after the Revolutionary War, slavery continued to exist there well into the nineteenth century. Between 1777 and 1804, all of the states north of Maryland did take steps that would eventually doom slavery within their borders. But only in Massachusetts, Vermont, and New Hampshire were slaves emancipated relatively swiftly, and even in these states abolition measures were ambiguous and their implementation inconsistent. In Pennsylvania, New Jersey, New York, Connecticut, and Rhode Island, state legislatures adopted gradual abolition legislation, which dismantled slavery over a period of half a century. Even histories of the North that distinguish gradual from immediate abolition tend to depict the former as an event rather than as a process. Some accounts elide the decades between the enactment of gradual abolition laws and slavery's actual extinction, as though slavery during this period were unworthy of remark because it was in decline. Other works minimize or foreshorten the history of Northern slavery after the adoption of gradual abolition through imprecise language and sweeping generalities. Still other works ignore the mechanics of gradual abolition laws and their effect on slaves entirely. Historians' cursory treatment of this transitional era insinuates that gradual abolition laws produced slavery's straightforward and timely demise and promotes the image of Northern slavery as fleeting and anomalous. Using Connecticut as a case study, this Note begins where the traditional narrative concludes. Unlike the standard histories of African Americans and of slavery in Connecticut, this Note probes the law of slavery between 1784, when the state adopted gradual abolition, and 1848, when the state's last slaves became free. In particular, this Note challenges the standard account of Connecticut abolition in three respects. First, it presents evidence that Connecticut's 1784 Gradual Abolition Act did not remove slavery from the state in a prompt and orderly fashion. In Connecticut--as in all of those states north of Maryland and south of Massachusetts that enacted gradual abolition laws--slavery's termination was protracted and idiosyncratic. Second, the Note demonstrates that Connecticut's Gradual Abolition Act, while central to the decline of slavery in the state, was only one of several legal and extralegal developments that together caused slavery to disintegrate. Third, this Note considers the experience of Connecticut slaves and their children in the wake of gradual abolition; it examines slavery's stubborn hold on people even as it slowly decayed. Part I examines Connecticut's Gradual Abolition Act of 1784 and reveals that the law freed no slaves. It did promise eventual freedom to the future-born children of slaves, but, under the law, even these beneficiaries remained in servitude until the age of twenty-five. The law reflected the legislature's intent to end the institution of slavery in the state in a way that respected property rights and preserved social order. Part II challenges the notion that the 1784 law alone extinguished slavery in Connecticut. The population of slaves did decrease after 1784, but only because the Gradual Abolition Act was combined with other legal developments, both legislative and judicial, that so cut off the supply of new slaves as to ensure slavery's atrophy. Despite these legal restrictions, individuals continued to introduce new slaves into Connecticut through a variety of means, both lawful and unlawful. Furthermore, neither the 1784 law, nor any other law, emancipated living slaves. These slaves' sole hope for freedom was the voluntary acts of slaveholders. To the extent that statutory law addressed such manumissions, it discouraged rather than promoted it. Part III explores the effect of the Gradual Abolition Act on Connecticut slaves. Even after the enactment of gradual abolition, slaves remained subject to the wills of their masters and constrained by a slave code, a legal regime that controlled and managed slaves. In some senses, the 1784 law made slave life more uncertain because the law created incentives for slaveholders to export their bondspeople from Connecticut. Part IV shows that even the future-born children of slaves, to whom the Gradual Abolition Act promised freedom, did not experience unmitigated salvation. For twenty-five years, such individuals remained "in servitude," bound to their mothers' masters in a state of near-slavery, the contours of which were unsettled. Part V concludes with a summary of the Note's principal arguments and seeks to orient its analysis of abolition in Connecticut within the context of scholarship about Northern abolition more generally. The Gradual Abolition Act of 1784 did not neatly lift slavery from the social landscape of Connecticut. Nor did the Act initiate a linear process of abolition. If one keeps an eye on the law and an eye on those whom its vagaries affected, one begins to discover a turbulent story. Certainly, when measured against the alternative of perpetual slavery, the 1784 statute was a monumental achievement. However, through the eyes of both slaves and free black people, and of those who existed--as this Note will show--in between, the decades following the 1784 Act were bittersweet at best. The slaves who lived during these generations lived in a world of social limbo; for them, "abolition" ushered in an era of confusion and ambiguity rather than unqualified deliverance.
The Kabuki Mask of Bush v. Gore
111 Yale L.J. 223 (2001) Is law merely Kabuki politics? Many critics consider the Supreme Court's recent foray into electoral matters, Bush v. Gore, as resounding evidence that it is, with concerns for equality and electoral deadlines constituting the "conservative" Justices' masks. These critics point to flaws in the equal protection argument, the "conservative" Justices' decision not to remand the case to determine appropriate vote-counting standards, and the irony of the pro-federalism Rehnquist Court's intervention in a state supreme court's interpretation of state law. They conclude that political animus must explain the result. In this Case Note, I assume arguendo that the equal protection critiques are valid (even though some disagree ). I nevertheless seek to justify the Court's equal protection holding, not as correct on its own terms, but as a vehicle through which the Court addressed a likely First Amendment freedom of association violation. The real problem was not that the difference between standards was inherently too large but rather that political partisanship (i.e., viewpoint discrimination) may have caused it. In particular, I focus on how the absence of specific standards guiding permissible legal votes--when the instrumental effect of a county's choice of recount standard was immediately apparent--provided counties with an opportunity to try to manipulate the election results. The risk of viewpoint discrimination arose because the county canvassing boards in predominantly Democratic counties, such as Broward (on which I focus in this Case Note), knew that Gore would lose if the pre-recount vote held. There was a substantial possibility that Broward's Democratic agenda may have caused it to choose a more lenient vote-counting standard in order "to maximize the number of recovered votes." Even if the resulting standard were applied equally to Bush and Gore votes (which I presume to be true), this partisan choice of standards would--for reasons that I explain--unconstitutionally restrict Bush voters' freedom of association by intentionally providing Gore with a relative gain. Part I explains the bare-bones facts pertinent to this Case Note and briefly restates the Court's equal protection holding. Part II discusses the doctrinal underpinnings of freedom of association analysis. Part III describes how Bush v. Gore would have presented a unique but cognizable--and potentially meritorious--relative restriction of association.
"A Common Fate of Discrimination": Race-Gender Analogies in Legal and Historical Perspective
110 Yale L.J. 1045 (2001)