In late November, shortly after the Supreme Court granted certiorari in Burwell v. Hobby Lobby, Linda Greenhouse published a perceptive op-ed arguing that the contraceptive mandate cases “aren’t about the day-in, day-out stuff of jurisprudence under the First Amendment’s Free Exercise Clause,” and they aren’t about the rights of corporations either. Instead, she said, “They are about sex.”
In response to which I want to say yes, they’re about sex. And they’re about religion. But they’re also about money. They’re about sex, God, and money. Since sex and God have both gotten a lot of attention already, I’m going to focus on the money.
A new generation of social science research creates new opportunities to increase fairness and reduce racial inequality in education. This research raises important questions for antidiscrimination law.
Over the past twenty years, research conducted around the world has established that for students subject to pervasive negative intellectual stereotypes, such as African American and Latino students (and many other groups, including, in math and science, girls and women), school contexts that call to mind these stereotypes can produce distraction and anxiety that impede school achievement and contribute to racial disparities. This “stereotype threat” is the default in evaluative, challenging academic environments. Hence, common measures of intellectual ability typically underestimate minority students’ potential. But stereotype threat is not inevitable. Brief exercises can reduce its effects, causing lasting improvements in minority student achievement.
Claudia, a Mexican American with family roots in the United States since the mid-1800s, walked out of a grocery store, happily chatting with her three young children in Spanish as they walked toward her car. Before arriving at her car, she was stopped by government officials and asked for proof of citizenship. Speaking to the officers in accent-free English, she explained that she is in fact a United States citizen, offering her driver’s license as proof. After rejecting her driver’s license, the officers requested another form of identification as proof that she was in the United States legally. Eventually, Claudia gave the officers something that satisfied them, and they allowed her to continue with her children to her car. After the event, Claudia wondered what she might do in the future to avoid being stereotyped as an “undocumented Mexican.”
When the Supreme Court rules on matters of statutory interpretation, it does not establish “methodological precedents.” The Court is not bound to follow interpretive practices employed in a prior case even if successive cases concern the same statute. Instead, the Court’s interpretive practices may change without warning or explanation, and at times they do so as part of a broader transition between interpretive regimes independently of any substantive change to the statute interpreted. Stare decisis appears to require no justification for changes in the Court’s interpretive practices. This is striking because abrupt changes in the interpretive practices applied to a statute have the power to disrupt the consistency and predictability of a statute’s enforcement and the rationality of its design.
In late 2011, the New York City Police Department (“NYPD”) made national and international headlines when its secret surveillance of Muslims across the New York City area was discovered. Under the guise of counterterrorism, the NYPD monitored the daily lives of thousands of Muslims for about a decade, using techniques such as taking photographs, collecting license plate numbers at mosques, and utilizing informants known as “mosque crawlers” to infiltrate Muslim organizations. From recording sermons to monitoring businesses and grade schools, the NYPD targeted individuals not because of a reasonable suspicion that they specifically were linked to terrorism, but rather because of one common characteristic: they were or were believed to be Muslim.
Insurance companies are in the business of discrimination. Insurers attempt to segregate insureds into separate risk pools based on the differences in their risk profiles, first, so that different premiums can be charged to the different groups based on their differing risks and, second, to incentivize risk reduction by insureds. This is why we let insurers discriminate. There are limits, however, to the types of discrimination that are permissible for insurers. But what exactly are those limits and how are they justified? To answer these questions, this Article (a) articulates the leading fairness and efficiency arguments for and against limiting insurers’ ability to discriminate in their underwriting; (b) uses those arguments to identify a set of predictions as to what one would expect state antidiscrimination laws to look like; and (c) evaluates some of those predictions against a unique hand-collected dataset consisting of the laws regulating insurer risk classification in all fifty-one U.S. jurisdictions. Among our findings is that, contrary to the conventional wisdom, state insurance antidiscrimination laws vary a great deal: in substance and in the intensity of regulation, across lines of insurance, across policyholder characteristics, and across states. The Article also finds that, contrary to our own predictions, a surprising number of jurisdictions do not have any laws restricting insurers’ ability to discriminate on the basis of race, national origin, or religion.
The Supreme Court has declared that children should not be penalized based on the circumstances of their birth. In the context of assisted reproductive technology (“ART”), however, parentage provisions that apply only to children born to heterosexual married couples continue to be the rule rather than the exception. Many of the policymakers resisting the calls for reform have been influenced by the debate currently playing out in the same-sex marriage context regarding the causal connection (or lack thereof) between marriage and gender, on the one hand, and positive child welfare outcomes, on the other.
This Article approaches this increasingly contentious debate in a novel way by focusing on an issue on which both sides converge—the desire to protect the well-being of children. Using this lens, the Article accomplishes two things. First, this Article offers a doctrinal analysis of an issue that, until now, has remained almost entirely unexplored. Specifically, the Article demonstrates that, contrary to the asserted child welfare goals of marriage-preference proponents, marriage-only ART rules harm the financial and, in turn, the overall well-being of nonmarital children. Second, the Article considers how to reform the inadequacies of the current regime. After assessing a range of potential normative solutions, the Article concludes by proposing a new theoretical framework for determining the legal parentage of all children—both marital and nonmarital—born through ART.
Fat students are denied access to fair and equal education due to widespread antifat discrimination. Unfortunately, there are currently no statutes that provide adequate recourse for fat students. Thus, this Note advocates the drafting of new legislation specifically aimed at eliminating discrimination against students on the basis of fatness and recommends measures that can be adopted by school districts to combat discrimination against fat students.
Around the world, efforts by states to accommodate cultural pluralism vary in form and vigor. Some multiculturalist states cede to cultural minorities the authority to govern in certain substantive areas, such as family law. Not surprisingly, feminists have raised concerns that a state’s reluctance to govern in areas traditionally seen as “private,” and leaving those areas of law to customary legal systems, leaves women within those minority communities vulnerable to discrimination. The potential clash between multiculturalism and equality has been the focus of much theorizing in the last decade. Much of the discourse has been abstract, polarizing, and minimally productive. Furthermore, the ways in which women act with agency, engaging with and reformulating cultural policy, has received insufficient attention. Many women value cultural identity, even as they work to eliminate discrimination within their cultural communities.
The international human rights community, however, has not always viewed women as committed, active members of their cultural communities. By viewing African women almost exclusively as victims of their culture, the international human rights community has historically undervalued the potential for African women to reformulate cultural policies within their communities. The two primary human rights treaties for the promotion of gender equality in Africa, the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW” or “the Convention”) and the African Charter on Human and Peoples’ Rights (“African Charter” or “the Charter”), are dismissive of culture and gender equality, respectively. The Protocol to the African Charter on the Rights of Women in Africa (“the Protocol”) attempts to remedy the shortcomings of CEDAW and the African Charter and offers new hope for promoting gender equality on the continent. In addition to strong substantive rights, the Protocol provides important procedural rights to ensure that women have a voice in the ongoing examination and reformulation of cultural practices and customary law.
What Blood Won’t Tell: A History of Race on Trial in America tells the history of race and racism in the United States through the lens of trials of racial identity—cases in which courts or administrative bodies determined whether someone was black, white, or Indian. The book is first and foremost a history of the shifting ways Americans have used the law to create “race,” a system of ordering people hierarchically with grave consequences for liberty, property, and rights. While many histories of race and law emphasize the rise of a “one drop of blood rule” as uniquely degrading to African Americans because of its association of “negro” blood with taint, and focus on evidence from statutes and high court pronouncements, my book instead looks at law “on the ground.”
In practice, degree-of-blood rules were not as important as other forms of racial knowledge, especially evidence of racial performances and associations, and certain kinds of racial “science” and expertise. Moreover, the discourse of racial performance rose together with the better-known discourse of science in the mid-nineteenth century, and they were not perceived as opposites or mutually exclusive. My point is not to show that race is legally “constructed”—a starting rather than an endpoint of the narrative—nor that race was contingent, performative, and fluid, but to show that making race depend on performance drew a close connection between whiteness and citizenship in U.S. law. It is this imaginary connection between whiteness and fitness for citizenship that I believe remains a potent force today in debates over immigration, the PATRIOT Act, and innumerable other public questions.