New Article: Noah D. Zatz, Special Treatment Everywhere, Special Treatment Nowhere, 95 B.U. L. Rev. 1155 (2015).
New Article: Lauren Sudeall Lucas, Identity as Proxy, 115 Colum. L. Rev. __ (forthcoming 2015). Abstract below:
As presently constructed, equal protection doctrine is an identity-based jurisprudence, meaning that the level of scrutiny applied to an alleged act of discrimination turns on the identity category at issue. In that sense, equal protection relies on identity as a proxy, standing in to signify the types of discrimination we find most troubling.
Equal protection’s current use of identity as proxy leads to a number of problems, including difficulties in defining the category at issue; the tendency to privilege a dominant identity narrative; failure to distinguish among the experiences of subgroups within larger identity categories; and psychological and emotional harm that can result from being forced to identify in a particular way to lay claim to legal protection. Moreover, because the Court’s identity-as-proxy jurisprudence relies on superficial notions of identity to fulfill a substantive commitment to equality, it is more susceptible to co-option or manipulation by majority groups.
This Essay aims to engage readers in a thought experiment, to envision what equal protection doctrine might look like if it were structured to reflect the values identity is intended to serve without explicitly invoking identity categories as a way to delineate permissible and impermissible forms of discrimination. More specifically, it aims to shift from an identity-based jurisprudence that views race and gender as a collection of individual traits to a value-based jurisprudence that views race and gender as the product of structural forces that create and maintain subordination. Under the latter framework, the primary concern is not to eliminate differential treatment, but instead to destabilize status hierarchies and effectively counter subordination. Therefore, rather than asking whether the challenged government action is based on race or gender, one might ask whether it has the effect of perpetuating or exacerbating a history of discrimination or obstructs access to the political process. Unlike the current model, which focuses on defining categories and determining who falls within or outside those categories, the model suggested herein aims to eliminate identity as an intermediary filter and instead apply substantive rationales for heightened scrutiny directly to claims of discrimination.
The clearest impact of such a model would be in the context of affirmative action, where a majority plaintiff could no longer simply claim discrimination on the basis of race. Yet, the potential of a value-based model extends to other contexts as well — for example, challenges to voter identification laws, in which political exclusion would displace discriminatory intent and disparate impact as the relevant measure for analysis, and the treatment of pregnant women, in which discrimination on the basis of pregnancy would no longer have to align with gender to receive heightened scrutiny.
This shift has several advantages: it allows the law to make important distinctions between groups and within groups; it alleviates the need for comparative treatment and solutions that favor taking from all over giving to some; it is less likely to generate identity-based harms; it is fact-driven rather than identity-driven and thus better suited to the judicial function; and it serves an important rhetorical function by changing the nature of rights discourse.
Policy Brief: Katherine Maurer, Income Support May Reduce Violence for Poor Families, Center for Poverty Research – Davis, 2015.
Call-for-Papers: “Poverty’s Causes and Consequences in the Urban Developing World,” August 4–6, 2016 Agora Center, University of Jyväskylä, Finland. Submission deadline Aug. 30, 2015.
New Book: Allison J. Pugh, The Tumbleweed Society: Working and Caring in an Age of Insecurity (2015).
There is nothing that I can write here that others have not expressed in a better way and from a better position. So below are some links but I did want to briefly note that the Charleston church shooting is a powerful reminder, if one was needed, that the civil rights movement is not complete and the struggle should not be treated as the struggle of (given my age) our parents’ and grandparents’ generations. It isn’t just not over, but the most visible markers of structural racism are eerily similar to what they were at the height of the civil rights era: attacks on black churches and police violence directed against black people. The less visible marker of concentrated, multi-generational poverty sadly also remains true for too many black families.
These issues are and are not far removed from law school and from the lives of law students. For some students and many faculty members, particularly but not exclusively white students and faculty, the harms of racism can seem like something removed from the life of the law school. Even the solidarity and fight against racism among socially committed folks can assume an overly academic feel. But, of course, for some students, particularly black students, the country’s failings on civil rights are more immediate and personal. Two years ago for the first time since I started teaching at my school, there was finally, in the language of the Supreme Court on affirmative action, a “critical mass” of vocal black students in my 1L Property class. Far more than anything I could do from the front of the classroom, the students helped break down the racial distance that can exist even in very progressive law schools. But even as these gaps are gradually narrowed, white people, myself included, continue to experience numerous unearned advantages, including a relatively greater sense of and experience of freedom from racial violence. These are all obvious points but ones that sometimes are not admitted or are put on the back burner.
Finally, though I do not want this to take away from a focus on race, if more Americans traveled overseas, I think we as a society might be better positioned to recognize the craziness and evils associated with our gun policy. I am teaching in Japan right now and think it would be hard to find a city the size of Kyoto that is as safe in the United States. American exceptionalism when it comes to guns (like health care) should be matter of national shame not pride.
New Pathways Magazine: “Hispanics in America: A Report Card on Poverty, Mobility, and Assimilation,” Spring 2015 [Pathways is a magazine produced by the Stanford Center on Poverty & Inequality].
Call-for-Papers: “Human Rights, Housing and Dispute Resolution” – Friday 26th February 2016 University of Coimbra, Portugal
Call-for-Papers: Housing Law Research Network 2nd Annual Housing Law Symposium: “Human Rights, Housing and Dispute Resolution” – Friday 26th February 2016 University of Coimbra, Portugal. With a submission deadline of Jan. 1, 2016. Details after the jump.