Antidiscrimination Law
Article
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 fo…
Review
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 antidemoc…
Forum
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 …
Article
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, providin…
Forum
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…
Forum
“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.
Comment
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 Mo…
Feature
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.
Note
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 unconstitutiona…
Note
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 chall…
Article
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…
Forum
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 vis…
Forum
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,…
Note
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 disabili…
Forum
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 conso…
Forum
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 Disabi…
Article
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 ambivalen…
Feature
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 universit…
Forum
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…
Forum
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…
Forum
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.
Forum
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 ame…
Forum
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, cou…
Forum
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 …
Article
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 sig…
Note
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 …
Forum
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 l…
Forum
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 Essa…
Article
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 …
Comment
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 enf…
Article
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…
Review
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.
Review
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 …
Feature
GINA, Big Data, and the Future of Employee Privacy
Threats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. This Feature examines the Genetic Information Nondiscrimination Act (GINA) and argues that it offers a blueprint for preventing employers from breaching employ…
Forum
Is Korematsu Good Law?
This Essay argues that the Supreme Court’s claim to overrule Korematsu in Hawaii is both empty and grotesque. It argues that a decision to overrule a prior case is not meaningful unless it specifies which propositions it is disavowing, and Hawaii’s emptiness means to conceal its disturbing affinity …
Forum
This Is (Not) Who We Are: Korematsu, Constitutional Interpretation, and National Identity
Asserting the continued usefulness of legal claims, this Essay asks a critical question: what would it really take to overturn Korematsu and end structures of subordination? It argues that a true overruling of Korematsu requires a generative interpretation of our Constitution to uphold the inherent …
Forum
Masquerading Behind a Facade of National Security
What will happen when those discriminated against in the name of national security turn to the courts for legal protection? This Essay refracts this question through the lens of Korematsu, examining how courts will—and should—respond to the dual needs to promote national security and protect fundame…
Forum
Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop
Conversation about Masterpiece Cakeshop has focused on the Court’s holding that decisionmakers must treat those seeking religious exemptions with respect. This Essay brings to light the case’s broader guidance on religious exemptions under the Free Exercise Clause and what that means for judicial an…
Forum
Reconceptualizing Sexual Harassment, Again
The #MeToo movement has spurred a renewed focus on sexual harassment. But often, the narratives that emerge overemphasize sexualized forms of harassment at the expense of broader structural causes. This Essay builds on Schultz’s previous work to explore those institutional drivers of harassment.
Forum
Queering Sexual Harassment Law
Franchina v. City of Providence may be the first judicial opinion of the #MeToo movement. But it also points beyond the #MeToo movement, exemplifying harassment that is motivated by desires to enforce gender roles and why sexual orientation discrimination is sex discrimination under Title VII.
Forum
Of Power and Process: Handling Harassers in an At-Will World
Pressure is mounting on companies to take swift disciplinary action regarding alleged sexual harassment. But our employment law incentivizes employers to tolerate high-ranking harassers while cracking down on inappropriate behavior by the rank-and-file. This Essay suggests a better path forward.
Forum
Sexual Harassment Law After #MeToo: Looking to California as a Model
The #MeToo movement has motivated people to speak out about sexual harassment, but many of those speaking remain vulnerable to retaliation. This Essay provides the perspective of an employment lawyer on the shortcomings of sexual harassment law and how state law can afford greater protection.
Forum
Was Sexual Harassment Law a Mistake? The Stories We Tell
Does our sexual harassment law hinder the larger project of reducing harassment? This Essay demonstrates that the law constrains stories of harassment and hamstrings our calls for reform. Ultimately, the law, not just public perception, must change if this movement is to have a lasting effect.
Forum
What About #UsToo?: The Invisibility of Race in the #MeToo Movement
The #MeToo movement has rightly been praised for breaking long-held silences about harassment. It has also rightly been critiqued for ignoring unique forms of harassment that women of color face. This Essay calls for a sexual harassment law that embraces intersectional, multidimensional identity.
Article
The Jurisprudence of Mixed Motives
How do various domains of law deal with mixed motives? Are we condemned by our darkest motive, forgiven according to our noblest, or something in between? This Article develops a precise descriptive vocabulary for how courts analyze motives, concluding that there are only four motive standards in co…
Article
The Nature of Parenthood
This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary…
Note
Ban the Address: Combating Employment Discrimination Against the Homeless
This Note presents a study of obstacles to employment faced by homeless job applicants and offers potential solutions. Homeless job applicants confront discrimination when they provide the address of a shelter or do not have an address to provide on applications. Advocates shou…
Article
Inside the Agency Class Action
Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a re…
Review
Systemic Triage: Implicit Racial Bias in the Criminal Courtroom
Crook County: Racism and Injustice in America’s Largest Criminal Court By Nicole van cleve Stanford university press, april 2016 author. Professor of Law, U.C. Irvine School of Law. A.B. Harvard College, J.D. Yale Law School. I wish to thank Rick Banks, Erwin Chemerins…
Forum
The Implicit Racial Bias in Sentencing: The Next Frontier
A prominent life scientist recently declared that the Higgs boson particle, the Internet, and implicit bias are the three most important discoveries of the past half-century. In President Obama’s commencement address at Howard University last year, Obama stated: “And we knew . . . that even the good…
Forum
Systemic Implicit Bias
Legal discourse on implicit bias has changed the way scholars and citizens think about race in the justice system. Ever-growing scholarship, much of it empirical, has identified, confronted, and sought to address how implicit bias operates in nearly every criminal justice context— especially in poli…
Forum
Community Policing as a Counter to Bias in Policing: A Personal Perspective
Some forty years ago, I was a very young black man living in the Florida panhandle. My dream was to get into law enforcement, but I first needed to get into the state academy, which required the endorsement of a Florida police executive. The chief of the Florida Agricultural and Mechanical Universit…
Forum
A Trademark Defense of the Disparagement Bar
The Supreme Court will soon hear argument over whetherCongress may forbid registering trademarks that consist of “matter which may disparage or falsely suggest aconnection with persons, living or dead, institutions, beliefs, or nationalsymbols, or bring them into contempt, or disrepute.” The dispara…
Forum
Pre-Exposure Prophylaxis (PrEP) and Criminal Liability Under State HIV Laws
Nick Rhoades was diagnosed with HIV at the age of 23. In 2005, he began anti-retroviral therapy (ART), an increasingly effective form of treatment that can reduce the amount of HIV in blood to undetectable levels. Three years later, the treatment had done just that. Rhoades’s risk of transmitting th…
Feature
Title IX: An Imperfect but Vital Tool To Stop Bullying of LGBT Students
LGBT students are bullied at dramatically higher rates than other students. School bullying generally, and the targeting of LGBT students in particular, has recently garnered national attention as a serious problem that needs to be solved. Just as society is increasingly re…
Feature
In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education
The treatment of sexual harassment victims by their schools, and of schools by courts, under the institutional liability standard of deliberate indifference for damages in private suits is inconsistent with Title IX’s guarantee of equal educational outcomes on the basis of sex.…
Forum
Griswold and the Public Dimension of the Right to Privacy
Fifty years ago, the Court in Griswold v. Connecticut1 invalidated Connecticut’s ban on birth control. The various opinions in Griswold were in many ways products of their time. For instance, none of the Justices focused on the implications of the Connecticut law for women’s equality. Con…
Forum
Roundup: Should We Treat Pregnant Workers Like Disabled Workers?
On December 3, the Supreme Court heard arguments in Young v. United Parcel Service, a case that asks if the Pregnancy Discrimination Act (PDA) entitles pregnant workers to receive the same accommodations as disabled workers.1 Already, the EEOC has issued Enforcement Guidance explaining that d…
Forum
Sotomayor’s Supreme Court Race Jurisprudence: “Fidelity to the Law”
During the Senate confirmation hearings for Justice Sonia Sotomayor, concerns were persistently raised about her ability to be impartial. In this Essay, Professor Hernández argues that the Supreme Court’s race-related jurisprudence illuminates Justice Sotomayor’s continued commitment to her stated j…
Comment
Unveiling Inequality: Burqa Bans and Nondiscrimination Jurisprudence at the European Court of Human Rights
122 Yale L.J. 1089 (2013).
Forum
Congress’s Authority To Enact the Violence Against Women Act: One More Pass at the Missing Argument
My “missing argument” invokes the structure of the Supreme Court’s decision in Jones v. Alfred H. Mayer Co. to explain congressional authority to enact the civil rights provisions of the Violence Against Women Act. Like the “relics” of slavery, patterns of violence against women trace to decades of …
Note
An Organic Law Theory of the Fourteenth Amendment: The Northwest Ordinance as the Source of Rights, Privileges, and Immunities
120 Yale L.J. 1820 (2011).
Since the ratification of the Fourteenth Amendment in 1868, judges and scholars have struggled to coherently identify the rights, privileges, and immunities that no state should abridge. Debates over the ambit of the Fourteenth Amendment, however, have consistently overl…
Article
From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases
120 Yale L.J. 1278 (2011).
For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned wi…
Review
The Common School Before and After Brown: Democracy, Equality, and the Productivity Agenda
120 Yale L.J. 1455 (2011).
In Brown's Wake: Legacies of America's Educational Landmark
By Martha Minow
New York, NY: Oxford University Press, 2010, pp. 320. $24.95.
Comment
Section 5 Constraints on Congress Through the Lens of Article III and the Constitutionality of the Employment Non-Discrimination Act
120 Yale L.J. 1263 (2011).
Article
Discrimination by Comparison
120 Yale L.J. 728 (2011).
Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary’s dependence on comparators—those who are like a discrimination claimant but for the protected characteristic—as a favored heuristic fo…
Note
Created in Its Image: The Race Analogy, Gay Identity, and Gay Litigation in the 1950s-1970s
119 Yale L.J. 316 (2009).
Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially…
Note
Childbearing, Childrearing, and Title VII: Parental Leave Policies at Large American Law Firms
118 Yale L.J. 1182 (2009).
In a fiercely competitive labor market, large American law firms universally offer some paid leave to attorneys after the birth of the child. This Note offers an empirical investigation of those policies, finding that all firms offer paid leave to new mothers, and many fi…
Note
Racial Classification in Assisted Reproduction
118 Yale L.J. 1844 (2009).
This Note considers the moral status of practices that facilitate parental selection of sperm donors according to race. Arguments about intentions and consequences cannot convincingly explain the race-conscious design of donor catalogs. This prompts us to examine the exp…
Comment
Olmstead v. L.C. and the Voluntary Cessation Doctrine: Toward a More Holistic Analysis of the "Effectively Working Plan"
118 Yale L.J. 1013 (2009).
Note
When Parents Aren't Enough: External Advocacy in Special Education
117 Yale L.J. 1802 (2008).
The Individuals with Disabilities Education Act (IDEA) has been widely celebrated for providing millions of disabled children with broader educational and life opportunities. This Note seeks to improve the implementation of the IDEA by questioning one of its key assumptio…
Note
Weight Discrimination: One Size Fits All Remedy?
117 Yale L.J. 1900 (2008).
Being fat is one of the most devastating social stigmas today. In seeking a legal remedy, commentators and advocates appeal to existing models of employment discrimination: disability, race, sex, and more recently, appearance. Fat people do face discrimination along these…
Article
Just Semantics: The Lost Readings of the Americans with Disabilities Act
117 Yale L.J. 992 (2008).
Disability rights advocates and commentators agree that the Americans with Disabilities Act (ADA) has veered far off course from the Act’s mandate of protecting people with actual or perceived disabilities from discrimination. They likewise agree that the fault lies in the…
Comment
Defining the Protected Class: Who Qualifies for Protection Under the Pregnancy Discrimination Act?
117 Yale L.J. 1215 (2008).
Note
Realizing the Potential of the Joint Harassment/Retaliation Claim
117 Yale L.J. 120 (2007).
This Note assesses the relationship between hostile work environment harassment and retaliatory harassment claims by reviewing several cases in which both claims were brought. It argues that courts have unjustifiably narrowed the reach of both claims by disaggregating hara…
Article
Education, Equality, and National Citizenship
116 Yale L.J. 330 (2006)
For disadvantaged children in substandard schools, the recent success of educational adequacy lawsuits in state courts is a welcome development. But the potential of this legal strategy to advance a national goal of equal educational opportunity is limited by a sobering and l…
Note
From Employment to Contract: Section 1981 and Antidiscrimination Law for the Independent Contractor Workforce
116 Yale L.J. 170 (2006)
The American workplace has undergone a fundamental transformation as businesses increasingly have replaced traditional employees with independent contractors. Yet many of these individuals fall outside federal employment law, including Title VII's antidiscrimination protectio…
Article
Beyond Lawrence: Metaprivacy and Punishment
115 Yale L.J. 1862 (2006)
Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty–and communitarian–William Eskridge has described it as the ga…
Note
The Unforeseen Effects of Georgia v. Ashcroft on the Latino Community
115 Yale L.J. 2112 (2006)
In Georgia v. Ashcroft, the Supreme Court weakened the protections afforded to minority voters in jurisdictions covered by the section 5 preclearance provisions of the Voting Rights Act (VRA). This Note highlights the fact that Georgia v. Ashcroft--a decision applicable to a…
Note
Grutter at Work: A Title VII Critique of Constitutional Affirmative Action
115 Yale L.J. 1408 (2006)
This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical…
Article
Income Tax Discrimination and the Political and Economic Integration of Europe
115 Yale L.J. 1186 (2006)
In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions h…
Note
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…
Comment
Affirmative Action's Affirmative Actions: A Reply to Sander
114 Yale L.J. 2011 (2005)
I am grateful to Professor Sander for his interest in my work and his willingness to pursue a valid answer to the critical question of the effects of law school tier on bar performance. Sander's readiness to respond to my Comment demonstrates the importance of the questions…
Response
Mismeasuring the Mismatch: A Response to Ho
114 Yale L.J. 2005 (2005)
Daniel Ho claims that if one tugs at a single strand of my analysis of affirmative action, A Systemic Analysis of Affirmative Action in American Law Schools, the entire structure collapses. As I explain briefly in this Response, Ho is wrong. Ho seems to miss the central an…
Comment
Why Affirmative Action Does Not Cause Black Students To Fail the Bar
114 Yale L.J. 1997 (2005)
In a widely discussed empirical study, Richard Sander concludes that affirmative action at U.S. law schools causes blacks to fail the bar. If correct, this conclusion would turn the jurisprudence, policy, and law of affirmative action on its head. But the article misapplie…
Essay
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 …
Feature
Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy)
114 Yale L.J. 1353 (2005)
More than ever, urban school systems are segregated by race and class. While a chief cause of this segregation is the flight of white and upper-middle-class black families from predominantly black public schools, there is little discussion of white flight in contemporary edu…
Note
The Character of Discrimination Law: The Incompatibility of Rule 404 and Employment Discrimination Suits
114 Yale L.J. 1063 (2005)
Disregarding the dictates of Federal Rule of Evidence 404, plaintiffs in discrimination suits routinely prevail on the basis of propensity proofs. Yet neither the parties nor the courts are to blame for these rampant violations. It is, instead, the dearth of evidence availab…
Article
The Future of Disability Law
114 Yale L.J. 1 (2004)
Since its enactment in 1990, the Americans with Disabilities Act (ADA) has dominated discussions of disability law in the legal academy. While the ADA's achievements must be celebrated, the statute's limitations have become increasingly apparent. In particular, the statute appe…
Essay
Juries and Race in the Nineteenth Century
113 Yale L.J. 895 (2004)
The Supreme Court's jurisprudence on criminal juries has overlooked an important piece of history. This is most notable in the context of its jury discrimination jurisprudence over the past twenty years. In Batson v. Kentucky, the Court held that the Equal Protection Clause p…
Note
Private Voucher Schools and the First Amendment Right To Discriminate
113 Yale L.J. 743 (2003)
At the end of its 2001 Term, the Supreme Court settled one of the most contentious educational debates in recent history, ruling in Zelman v. Simmons-Harris that the inclusion of religious schools in a state school voucher program did not violate the Establishment Clause of t…
Article
The Sanitized Workplace
112 Yale L.J. 2061 (2003)
One of American society's most cherished beliefs is that the workplace is, or should be, asexual. This ethic is a legacy of our historic commitment to a conception of organizational rationality that treats sexuality as irrational and unproductive--a conception that had come …
Note
Same-Sex Privacy and the Limits of Antidiscrimination Law
112 Yale L.J. 1257 (2003)
Title VII of the 1964 Civil Rights Act, as it has been interpreted by the courts, is an uncompromising statute. It bars adverse employment actions taken on the basis of race, color, religion, sex, and national origin, with only one exception: in cases where an employer can …
Comment
Queer Brinksmanship: Citizenship and the Solomon Wars
112 Yale L.J. 673 (2002)
In 1994, Congress passed a law commonly known as the Solomon Amendment, threatening universities and law schools with loss of federal funding if they deny or effectively prevent military recruiters from accessing campuses and directory information about students. It was the …
Comment
Section 1983, Statutes, and Sovereign Immunity
112 Yale L.J. 353 (2002)
This Comment argues that a significant, but unnoticed, way around state sovereign immunity has become available under current law. Although sovereign immunity now generally prohibits actions against states for violations of the Americans with Disabilities Act (ADA), a plaint…
Note
Free Speech and the Visage Culturel: Canadian and American Perspectives on Pop Culture Discrimination
111 Yale L.J. 2289 (2002)
Article
The Political Economy of School Choice
111 Yale L.J. 2043 (2002)
This Article examines the political economy of school choice and focuses on the role of suburbanites. This group has re- ceived little attention in the commentary but is probably the most important and powerful stakeholder in choice debates. Suburbanites generally do not sup…
Comment
Simple Fairness: Ending Discrimination in Health Insurance Coverage of Addiction Treatment
111 Yale L.J. 2321 (2002)
Note
To Promote the General Welfare: The Republican Imperative To Enhance Citizenship Welfare Rights
111 Yale L.J. 1457 (2002)
Note
Reconceptualizing VAWA's "Animus" for Rape in States' Emerging Post-VAWA Civil Rights Legislation
111 Yale L.J. 1417 (2002)
Article
The Anti-Antidiscrimination Agenda
111 Yale L.J. 1141 (2002)
For a brief historical moment, a shadow overhung constitutional law--the shadow of Bush v. Gore. Many people consider the five-Justice majority opinion in that case to have been, legally speaking, a kind of joke. Obviously, those who hold this view wonder whether that case …
Article
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…
Note
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 …
Note
"A Common Fate of Discrimination": Race-Gender Analogies in Legal and Historical Perspective
110 Yale L.J. 1045 (2001)
Essay
Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel
110 Yale L.J. 441 (2000)
Last Term, the Supreme Court sent ominous signals about the future of federal antidiscrimination law. The Court twice ruled that Congress lacked power under Section 5 of the Fourteenth Amendment to enact laws prohibiting discrimination. In Kimel v. Florida Board of Regents, …