This article defends the classical liberal view of human interactions that gives strong protection to associational freedom except in cases that involve the use of force or fraud or the exercise of monopoly power. That conception is at war with the modern antidiscrimination or human rights laws that operate in competitive markets in such vital areas as employment and housing, with respect to matters of race, sex, age, and increasingly, disability. The article further argues that using the “human rights” (...) label to boost the moral case for antidiscrimination laws gets matters exactly backwards, given that any program of forced association on one side of a status relationship (employer, not employee; landlord, not tenant) is inconsistent with any universal norm governing all individuals regardless of role in all associative arrangements. The articled also discusses the tensions that arise under current Supreme Court law, which protects associational freedom arising out of expressive activities (as in cases involving the NAACP or the Boy Scouts), but refuses to extend that protection to other forms of association, such as those involving persons with disabilities. The great vice of all these arrangements is that they cannot guarantee the stability of mandated win/lose relationships. The article further argues that a strong social consensus against discrimination is insufficient reason to coerce dissenters, given that holders of the dominant position can run their operations as they see fit even if others do otherwise. It closes with a short model human rights statute drafted in the classical liberal tradition that avoids the awkward line drawing and balancing that give rise to modern bureaucracies to enforce modern antidiscrimination laws. (shrink)

Sharing-economy firms have opposed the application of antidiscrimination law to their transactions. At the same time, these firms have heralded their ability to achieve antidiscrimination aims without the force of law, and have adopted various measures to address discrimination. This Article documents and assesses these measures, focusing on the relationship between law and norms. Relying on the sharing economy as a case study, this Article shows how law can play a crucial role in spurring antidiscrimination efforts by (...) firms that it does not regulate, but also how antidiscrimination law might nonetheless be undermined by these voluntary efforts. (shrink)

This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate (...) related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant can argue that accepting the plaintiffs’ claim that they are discriminated against on the basis of sexuality might exacerbate the exploitation of surrogate mothers. This Article dubs such rebuttal claims RADARs: reciprocal antidiscrimination arguments. It offers a framework for weighing RADARs’ feasibility, by mapping both their potential and their limitations. It concludes that RADARs can be useful analytical tools for legislators and policymakers when assessing the overall impact of specific antidiscrimination measures. RADARs are also helpful for cause lawyers in considering the long term impacts of antidiscrimination litigation. In contrast, courts should be cautious in accepting RADARs made by defendants in antidiscrimination cases due to the inherent institutional and procedural limitations of adjudication. (shrink)

There is much in Weinstein’s article to contemplate, but I shall limit myself to making the following four main points. First, I believe that debates concerning the normative standing of hate speech law are always improved by heeding the internal variety of such law, and although I can see something of that same care in Weinstein’s article, such as when he distinguishes between different forms of hate speech law based on relative detriment to the legitimacy of so-called downstream laws, in (...) some instances this care is lacking. Second, Weinstein plays up the importance of collective authorization or democratic legitimacy of downstream laws vis-à-vis “(a) the obligation of those restrained by the speech restriction to obey a downstream antidiscrimination law; and (b) the morality of enforcing the downstream measure against those whose participatory rights have been impaired by the upstream speech restriction.” These may be important aspects of what it means to detract from the legitimacy of downstream laws, but they do not exhaust the relevant aspects. Third, I think that Weinstein’s article ignores some important nuances in what I have argued about hate speech laws and political legitimacy, and ignores something that might be true of the relationship between political and democratic legitimacy, namely, it might be that political legitimacy takes lexical priority over and, therefore, cannot be traded off against, the collective authorization or democratic legitimacy of downstream laws. Finally, I believe that in describing my use of the precautionary principle as “plainly indefensible” Weinstein has done justice neither to the raw plausibility of that principle nor to how I applied it to the special silencing effects of hate speech. (shrink)

Law, Economics, and Morality examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints into economic models. Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis is normatively objectionable. Moderate deontology prioritizes such values as autonomy, basic liberties, truth-telling, and promise-keeping over the promotion of good outcomes. It (...) holds that there are constraints on promoting the good. Such constraints may be overridden only if enough good is at stake. While moderate deontology conforms to prevailing moral intuitions and legal doctrines, it is arguably lacking in methodological rigor and precision. Eyal Zamir and Barak Medina argue that the normative flaws of economic analysis can be rectified without relinquishing its methodological advantages and that moral constraints can be formalized so as to make their analysis more rigorous. They discuss various substantive and methodological choices involved in modeling deontological constraints. Zamir and Medina propose to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. Law, Economics, and Morality presents the general structure of threshold functions, analyzes their elements and addresses possible objections to this proposal. It then illustrates the implementation of constrained CBA in several legal fields, including contract law, freedom of speech, antidiscrimination law, the fight against terrorism, and legal paternalism. (shrink)

Until approximately twenty years ago, advances in the study of human genetics had little influence on the practice of medicine. In the 1980s, this changed dramatically with the mapping of the altered genes that cause cystic fibrosis and Huntington disease. In just a few years, these discoveries led to DNA-based tests that enabled clinicians to determine whether prospective parents were carriers of CF or whether an individual carried the Huntington gene and, as a result, would almost certainly develop the disease.Observers (...) interested in the social and economic implications of genetic technology realized that such genetic tests could be used by insurance companies to predict which insurance applicants were likely to become ill or even die from these diseases. (shrink)

Stigma has become an important concept in public health law. It is widely accepted that certain diseases are disfavored in society, leading to discrimination against people identified with them, which in turn has the tendency to drive an epidemic underground—i.e., to make it more difficult for voluntary public health programs to reach and succeed among populations bent on concealing their disease or risk status. The need to reduce stigma and its effects has been used to justify the passage of privacy (...) and antidiscrimination law to protect people with HIV. More recently, stigma has been part of the arsenal of justification for special genetic antidiscrimination and privacy law. Despite its importance, however, there is no single widely accepted definition of stigma in social science, and its relationship to law has been generally under-theorized and unsupported by data, reducing our ability to effectively deploy law and other tools in the anti-stigma cause. (shrink)

Genetic discrimination is becoming an increasingly important problem in the United States. Information acquired from genetic tests has been used by insurance companies to reject applications for insurance policies and to refuse payment for the treatment of illnesses. Numerous states and the United States Congress have passed or are considering passage of laws that would forbid such use of genetic information by health insurance companies. Here we argue that much of this legislation is severely flawed because of the difficulty in (...) distinguishing genetic from nongenetic tests. In addition, barring the use by insurance companies of a genetic test but not a nongenetic test (conceivably for the same multifactorial disease) raises issues of fairness in health insurance. These arguments suggest that ultimately the problems arising from genetic discrimination cannot be solved by narrowly focused legislation but only by a modification of the entire health care system. (shrink)

The British Parliament stated that health services would be covered by the Disability Discrimination Act 1995 . However, when people with disabilities are at their most vulnerable, for example when in hospital or subject to medical procedures, the antidiscrimination law fails them. A review of cases indicates that when people with disabilities are subject to medical treatment, the legislative protections are allowed to vanish. Instead, medical decisions are justified on obscure notions such as “best interests”, often with irreversible or (...) even terminal results. This article examines the relevant provisions and limitations of the act, the features of notable non-treatment decisions, and the act's potential to guide future decision making. It argues that antidiscrimination legislation should be assertively applied to protect vulnerable people. (shrink)

More than forty years have passed since Congress, in response to the Civil Rights Movement, enacted sweeping antidiscrimination laws in the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. As a signal achievement of that legacy, in 2008, Americans elected their first African American president. Some would argue that we have finally arrived at a postracial America, butThe Imperative of Integration indicates otherwise. Elizabeth Anderson demonstrates that, despite progress toward (...) racial equality, African Americans remain disadvantaged on virtually all measures of well-being. Segregation remains a key cause of these problems, and Anderson skillfully shows why racial integration is needed to address these issues. Weaving together extensive social science findings--in economics, sociology, and psychology--with political theory, this book provides a compelling argument for reviving the ideal of racial integration to overcome injustice and inequality, and to build a better democracy. -/- Considering the effects of segregation and integration across multiple social arenas, Anderson exposes the deficiencies of racial views on both the right and the left. She reveals the limitations of conservative explanations for black disadvantage in terms of cultural pathology within the black community and explains why color blindness is morally misguided. Multicultural celebrations of group differences are also not enough to solve our racial problems. Anderson provides a distinctive rationale for affirmative action as a tool for promoting integration, and explores how integration can be practiced beyond affirmative action. -/- Offering an expansive model for practicing political philosophy in close collaboration with the social sciences, this book is a trenchant examination of how racial integration can lead to a more robust and responsive democracy. (shrink)

This paper explores conservative Christian demands that religious-based objections to providing services to lesbians and gay men should be accommodated by employers and public bodies. Focusing on a series of court judgments, alongside commentators’ critical accounts, the paper explores the dominant interpretation of the conflict as one involving two groups with deeply held, competing interests, and suggests this interpretation can be understood through a social property framework. The paper explores how religious beliefs and sexual orientation are attachments whose power has (...) been unsettled by equality law. But entangled with this property is another—that held in workers’ labour and public bodies’ resources. Arguing against the drive to balance competing interests, the paper uses social property to illuminate the agonistic character of the stakes. At the same time, it questions property as a normative framework for sexual orientation and religious beliefs. (shrink)

Can passing antidiscrimination laws ever be a bad idea? Yes, if broad policy reform is abandoned in favor of genetic‐specific legislation. But in spite of its serious flaws, both in concept and in practice, genetic‐specific legislation is sometimes worth passing anyway.

A persistent paradox apparently infects disability civil rights claims. On the one hand, these rights claims are often understood to apply only to those who are sufficiently impaired in body or in mind to qualify for them because of the disadvantage they endure. On the other hand, asserting significant impairments threatens to undermine the plausibility of these claims as civil rights rather than as welfare for those who are dependent and in need of extra help. Behind this paradox lies a (...) type of categorical understanding of disability civil rights: that disability civil rights are only for those who fall into a category of disability and that this category should be defined in a particular way, in terms of disadvantaging disablement. In this article, I dispel this paradox by deploying a critical analysis of Elizabeth Barnes’s account of physical disability in her recent book, The Minority Body. In her book, Barnes makes the important critical point that disability is not “bad” difference. Instead, she argues that physical disability is a physical condition that the disability rights community is working to promote justice for. I argue that this account fails as a project of ameliorative social metaphysics because it fails to understand the role of impairment in the construction of disability antidiscrimination law. I also argue that her account risks privileging physical disability and is thus problematic as a starting place for examining disability justice. (shrink)

Resumen: En los últimos años ha cobrado relevancia académica en el ámbito de los derechos humanos, un debate sobre la propuesta de la estudiosa estadounidense Martha Albertson Fineman de entender la vulnerabilidad como una condición humana universal, innata y constante. Esta nueva conceptualización de la vulnerabilidad se ha presentado como la base teórica de un paradigma alternativo a la teoría liberal del Estado y de los derechos. El presente trabajo analiza algunos puntos críticos de este nuevo paradigma en su relación (...) con la idea de igualdad, especialmente en la medida en que se presenta como una nueva formulación de la idea de igualdad sustantiva, capaz de transcender las limitaciones que se señalan a la noción liberal de igualdad formal y al derecho antidiscriminatorio construido sobre esa noción. Abstract: The proposal advanced by US theorist Martha Albertson Fineman for reconceptualising the notion of vulnerability as a human condition, universal, inherent and constant, has acquired growing academic moment in the field of human rights. This new conceptualisation has been presented as the theoretical foundation for a new political and legal paradigm, alternative to liberal theory. This essay assesses some critical points in this new paradigm in its relation with the idea of equality, especially inasmuch as vulnerability appears as a new formula for substantive equality, capable of transcending the limitations of the liberal notion of formal equality and the antidiscrimination law that is founded thereupon. (shrink)

The most remarkable thing about the U.S. Supreme Court's 1998 decision in Bragdon v. Abbott was that it was necessary at all. Seventeen years into the epidemic of the acquired immunodeficiency syndrome, the Supreme Court, by a mere 5-4 majority, finally affirmed what most public health officials, health providers, and lawyers working with people with human immunodeficiency virus believed all along: that individuals with HIV infection are entitled to the protections of antidiscrimination law, and that health care providers must (...) respond to a patient's infection based on reason and science, not fear and prejudice. For individuals with HIV, and for those with other disabilities, the Court's ruling was a critical victory. But the very fact that the issues had to be decided by the Supreme Court and that only five justices joined the majority, shows the fragility of legal rights pertaining to HIV as well as the wide gulf between the perspectives of public health and those of public law. (shrink)

Appeals to intersectionality serve to remind us that social categories like race and gender cannot be adequately understood independently from each other. But what, exactly, is the intersectional thesis a thesis about? Answers to this question are remarkably diverse. Intersectionality is variously understood as a claim about the nature of social kinds, oppression, or experience ; about the limits of antidiscrimination law or identity politics ; or about the importance of fuzzy sets, multifactor analysis, or causal modeling in social (...) science. (shrink)

All of us are entitled to the protections of law against violence, to a high quality education, to decent employment that respects our dignity, and to necessary assistance with our caregiving. Our civil rights are our rights to the protections of ordinary law - not constitutional law, and not only antidiscrimination law - that will ensure that we can participate in civil society, and hence lead flourishing lives. In this innovative work, Robin L. West looks back to nineteenth-century Civil (...) Rights Acts to argue that the point of civil rights law is not only non-discrimination, but also to assure that all of us receive the protection of legal rights that promote human flourishing. Since the 1960s, Supreme Court decisions on civil rights issues have focused on non-discrimination and thus have 'hollowed out' this broader meaning of civil rights law. This book reconceives civil rights as a set of legal guarantees that all will be included in the legal, political, economic and social projects central to civil society. (shrink)

This article proposes a novel strategy, one that draws on insights from antidiscrimination law, for addressing a persistent challenge in medical ethics and the philosophy of disability: whether health systems can consider quality of life without unjustly discriminating against individuals with disabilities. It argues that rather than uniformly considering or ignoring quality of life, health systems should take a more nuanced approach. Under the article's proposal, health systems should treat cases where quality of life suffers because of disability-focused exclusion (...) or injustice differently from cases where lower quality of life results from laws of nature, resource scarcity, or appropriate tradeoffs. Decisionmakers should ignore quality-of-life losses that result from injustice or exclusion when ignoring them would improve the prospects of individuals with disabilities; in contrast, they should consider quality-of-life losses that are unavoidable or stem from resource scarcity or permissible tradeoffs. On this proposal, while health systems should not amplify existing injustice against individuals with disabilities, they are not required to altogether ignore the potential effects of disability on quality of life. (shrink)

It has become commonplace within feminist theory to claim that women’s lives are constructed by multiple, intersecting systems of oppression. In this thesis, I challenge the consensus that oppression is aptly captured by the theoretical model of “intersectionality.” While intersectionality originates in Black feminist thought as a purposive intervention into US antidiscrimination law, it has been detached from that context and harnessed to different representational aims. For instance, it is often asserted that intersectionality enables a representational politics that overcomes (...) legacies of exclusion within hegemonic Anglo-American feminism. I argue that intersectionality reinscribes the political exclusion of racialized women as a feature of their embodied identities. That is, it locates the failure of political representation in the “complex” identities of “intersectional” subjects, who are constructed as unrepresentable in terms of “race” or “gender” alone. Further, I argue that intersectionality fails to supplant race- and class-privileged women as the normative subjects of feminist theory and politics. In Chapter One, I demonstrate that intersectionality illicitly imports unitary concepts of “race,” “gender,” and “class.” In Chapter Two, I argue that intersectionality lacks a theory of hierarchy: it is a “flat geography” which cannot capture vertical and horizontal lines of power. In Chapter Three, I explore the role of analogical reasoning in rendering racialized women invisible both as gendered and as racialized subjects in twentieth-century social movements. To concretize this argument, I turn to Simone de Beauvoir’s use of race-sex analogies to describe (white, bourgeois) “women’s” situation in The Second Sex. In Chapter Four, I advance a programmatic unified account of oppression. I suggest that the possibility of a unified theory (as opposed to an intersectional one) is intimated in the concrete articulation of race, class, and gender. My point of departure is a phenomenology of capitalism, which reveals that these are all fundamentally modes of exploitation and appropriation. In Chapter Five, I theorize how they are made visible (and invisible) on the body. I extend Frantz Fanon’s account of “epidermalization,” drawing upon the marxian concepts of “fetishism” and “mode of appearance” to elaborate four structures of gendered racialized perception: first, the “miscegenation taboo” structures perceptions of the “purity” of whiteness and the “polluting” effects of blackness. Whiteness, theorised as a “possessive investment” and as “property” is defined by the right to exclude. Second, the “episteme of tellable differences” produces the conviction that we can automatically “tell the difference” between a body placed in one “racial” or gender category, and another—while bodies that temporarily confound classification cause fear and consternation. Third, the “race/reproduction bind” names the axiomatic assumption that “race” is reproduced through (heterosexual) procreation and that “race” is, therefore, biologically inheritable. Finally, the “fear/criminalisation reflex” refers to the bidirectional equation of particular racialised-gendered bodies with crime, and of crime with those bodies; this a function of the discursive use of ‘crime’ as an alibi for “race’” the systemic racialisation of punitive carceral institutions, and the historical origins of “race” in transatlantic chattel slavery, which shaped perceptual-cognitive associations of freedom with whiteness and captivity with blackness. (shrink)

BackgroundThe issue of stigma is very important in the battle against HIV/aids in Africa since it may affect patient attendance at healthcare centres for obtaining antiretroviral medications and regular medical check-ups. Stigmatization creates an unnecessary culture of secrecy and silence based on ignorance and fear of victimization. This study was designed to determine if there is external stigmatization of people living with HIV and AIDS by health care workers at a tertiary hospital in KwaZulu-Natal province, South Africa. The study investigated (...) the impact of knowledge of HIV/aids by HCWs on treatment of patients, as well as the comfort level and attitude of HCWs when rendering care to PLWHA.MethodsA descriptive cross sectional study was designed to collect data using an anonymous self-administered structured questionnaire from 334 HCWs. The study was conducted in clinical departments of a large multidisciplinary 922-bed tertiary care teaching hospital in Durban, KZN.ResultsOverall HCWs had an above average knowledge about HIV/aids although some gaps in knowledge were identified. Tests of statistical significance showed that there was association between level of education and knowledge of HIV/aids ; occupation and knowledge of HIV/aids ; and gender and knowledge of HIV/aids. Test for comfort level was only significant for gender, with males showing more comfort and empathy when dealing with PLWHA. The study also revealed that patients were sometimes tested for HIV without informed consent before surgery, due to fear of being infected, and there was some gossiping about patients' HIV status by HCWs, thereby compromising patient confidentiality. The majority of HCWs showed a willingness to report incidents of stigmatization and discrimination to higher authorities, for better monitoring and control.ConclusionsAlthough knowledge, attitude and comfort level of HCWs taking care of PLWHA was above average, enforcement of existing antidiscrimination laws and continuing education in medical ethics and healthcare law, would greatly improve the performance of HCWs taking care of PLWHAs. More psychological support and counselling should be provided to HCWs, to further reduce the impact of stigmatization and discrimination against PLWHA. (shrink)

After three decades of intensive debate in academic and activist circles, intersectionality has progressively been adopted in public policies. Yet, the challenges of its application are still largely unexplored. This article adopts a discursive approach to study the process of policy implementation of an intersectionality-informed plan in Madrid City Council, Spain. The analysis of materials retrieved through interviews, a focus group, and participant observation enables us to explore how the technical staff interpret intersectionality and links it with other established approaches (...) in equality and antidiscrimination law and policy, namely gender and diversity. We argue that preconceptions and positionality within the institutional structure deeply affect the interpretation of intersectionality and the subsequent action or non-action taken by implementing actors. Our study shows the challenges and opportunities to implement intersectionality in public policies that result from its discursive construction through the frames of gender and diversity. (shrink)

Emotions situate actors in relationships and shape their social interactions. Culture defines both the qualities of individual identity and the constitution of social groups with distinctive values and practices. Emotions, then, are necessarily experienced and acted upon in culturally inflected forms that define not only the conventions of their articulation through individual and collective action, but also the very words that name them. This article develops theoretical arguments to support these claims and illustrates their application in a description of differing (...) emotional repertoires, and their consequences, in Aotearoa New Zealand. The effects of resentment and shame in an ethnic politics of rights and antidiscrimination law demonstrate that context is central to a nuanced understanding of how law and emotions connect in the practicalities of enforcing the protections of anti-discrimination law. (shrink)

In this paper, I revisit Kimberlé Crenshaw's argument in “Demarginalizing the Intersection of Race and Sex” (1989) to recover a companion metaphor that has been largely forgotten in the “mainstreaming” of intersectionality in (white-dominated) feminist theory. In addition to the now-famous intersection metaphor, Crenshaw offers the basement metaphor to show how—by privileging monistic, mutually exclusive, and analogically constituted categories of “race” and “sex” tethered, respectively, to masculinity and whiteness—antidiscrimination law functions to reproduce social hierarchy, rather than to remedy it, (...) denying Black women plaintiffs legal redress. I argue that in leaving the basement behind, deployments of “intersectionality” that deracinate the concept from its origins in Black feminist thought also occlude Crenshaw's account of the socio-legal reproduction of hierarchical power. (shrink)

Women’s entry into the legal academy in significant numbers—first as students, then as faculty—was a 1970s and 1980s phenomenon. During those decades, women in law schools struggled: first, for admission and inclusion as individual students on a formally equal footing with male students; then for parity in their numbers in classes and on faculties; and, eventually, for some measure of substantive equality across various parameters, including their performance and evaluation both in and in front of the classroom, as well as (...) in the quality of their experiences as students and faculty members and in the benefits to be reaped from their tenure. This part of the story of women’s entry into the legal academy in the 1970s and 1980s—a story of attempted admission, then inclusion, then integration and assimilation, and then, finally, equality—is now a familiar one, at least in broad outline. It is not, in its entirety, an uplifting story. According to a raft of articles produced by women law students in the 1980s, 1990s, and 2000s, women law students during those decades participated less in the classroom, were called on and responded to differently when they did participate, suffered from more law-school-induced anxiety disorders and other mental health issues, graduated with lower GPAs and less law review experience, published fewer notes and filled fewer editorial positions on those journals, held fewer leadership positions overall while in law school, and had far more difficulties connecting with mentors, teachers, and would-be recommenders among the faculty than male students. Women law professors during those decades were tenured at significantly lower rates than men and, particularly at high prestige schools and at schools with fewer female faculty among the tenured ranks, were hired at lower rates that did not reflect their number in the pool of qualified applicants, had trouble asserting or maintaining authority in the classroom or being perceived as having authority, taught lower-prestige courses and received low teaching evaluations, and, like their students, were published far less frequently in the major and most prestigious law reviews. Much of this, albeit not all, has not changed much for either students or faculty. As women in law schools enter the posttenure and midcareer phase, many of the old problems persist while new ones appear: women faculty are invited to participate on panels less often than men, and both women students and faculty are underrepresented as authors in law reviews. Although gender-neutral parental leave is now available to faculty at most law schools, many such policies are still ad hoc. There is considerable worry, although no hard evidence, over whether men disproportionately use the time off to write rather than care for children. Women are still disproportionately overrepresented in some fields and underrepresented or unrepresented in others, and those fields correlate in unsurprising ways with levels of prestige: the more women in a field, the less prestigious. As elsewhere in the workforce, women faculty in legal education suffer from sexual harassment, most of which is unremedied. Women still suffer a pay gap in law schools that remains unaddressed at most universities, as it does elsewhere in academia. There is a sizeable literature on these depressing phenomena that stubbornly do not seem to abate. In these comments, however, I want to focus on another, less appreciated, part of the story of women’s entry into the legal academy in the 1970s and 1980s: the emergence of a body of scholarship—sometimes called feminist legal theory—produced by some of these women legal scholars over the same time period. The story I want to focus on, in other words, is not that of second- or third-wave women’s struggles within the academy, either for admission, acceptance, assimilation, or equality in law schools. Rather, this Article focuses on the story of the scholarship some of those second-wave assimilated women produced once they got there. Feminist jurisprudence, understood largely as scholarship on issues pertaining to gender equality, was launched in the 1970s, endures today, and continues to shape debates. Feminist legal theory, however, was in effect a subfield within feminist jurisprudence and, as its name implies, was an attempt to fashion a broad- based theoretical account of the relationship of law in liberal legal regimes to women’s subordination, patriarchy, and gender and sexual inequality— particularly in a post–civil rights era, when women enjoyed broad access to rights of formal equality, reproductive liberty, and liberal antidiscrimination law. Feminist legal theory so understood—a body of scholarship in search of a theoretical understanding of the relation of law to women’s subordination or, more simply, of law and patriarchy—was birthed in the 1970s, nurtured in the 1980s, and matured in the 1990s. I suggest in this Article that it is now seemingly in decline, and may soon disappear altogether. The reasons for this trajectory, I believe, are to date unexplored. Some reasons are fairly self-evident. Feminist legal theory was a product of three time-specific factors peculiar to the 1970s and 1980s: it reflected the political and the legal struggles of second-wave feminism. The critical theory schools were, to varying degrees, present or thriving in the academy in the 1970s and 1980s, within which feminist legal theory was birthed, grew, and then coexisted with critical theory, albeit at times very uneasily; and this feminist theory reflected second-wave women faculty and students’ mixed experiences of assimilation, success, and alienation in law schools themselves, as briefly recited above. Those three factors—the background politics, the presence of critical theory in law schools, and the differences in women’s experience of those schools—are all themselves either disappearing or dissipating in felt urgency, albeit in different ways and at different speeds, and that dissipation clearly is a part of the story of feminist legal theory’s decline. There are other reasons for its decline as well, however. Some are internal to feminism and feminist theory, and some pertain to the changing nature of legal scholarship from the 1980s to the present. I explore these reasons in Part II below. The story of the development of a distinctively feminist legal theory during the 1970s through the 1990s, and the story of its decline in the 2000s, is of obvious relevance to the history of second- and third-wave feminism. It should also be of interest for what it reveals about the nature of legal scholarship as it was understood, received, and produced in those decades. Its decline likewise reveals something about the changing nature of legal scholarship and the legal academy today. Thus, one conclusion I draw is that the feminist legal theory of the 1970s through the 1990s—regardless of the truth or lasting power of its claims—stands as an example of a type of legal scholarship that was somewhat distinctive to those decades. That form of legal scholarship, furthermore, likely can only emanate from the legal academy. For a host of reasons, we are currently in danger of losing this entire genre of intellectual work, which would be the polity’s loss, not just feminism’s or the legal academy’s. (shrink)

Twice in the 2020 term, in Bostock and Comcast, the Supreme Court doubled down on the reasoning of “but-for causation” to interpret antidiscrimination statutes. According to this reasoning, an outcome is discriminatory because of some status—say, sex or race—just in case the outcome would not have occurred “but-for” the plaintiff’s status. We think this reasoning embeds profound conceptual errors that render the decisions deeply confused. Furthermore, those conceptual errors tend to limit the reach of antidiscrimination law. In this (...) essay, we first unpack the ambiguity of this but-for causal reasoning. We then show that this reasoning arises from a misapplication of tort law principles within antidiscrimination law, and that, as a result, it is both conceptually and normatively indeterminate. (shrink)

Bernard Dickens seeks to undermine the legal and ethical protections accorded to health care workers and hospitals conscientiously objecting to abortion. First, he appeals to the rationale of antidiscrimination laws as a basis for arguing against conscientious objection. Second, he argues that conscientious objection undermines the rights of patients and their autonomy. Third, he holds that conscientiously objecting doctors have a duty to refer patients for abortion. Fourth, he believes that Kant’s principle of respect for humanity as an end (...) in itself is violated by conscientious objection to abortion. Fifth, Dickens quotes remarks by Pope John Paul II as support for the idea that physicians should not conscientiously object to abortion. Finally, he posits that institutions, such as Catholic hospitals, have a responsibility to provide abortions. I argue that all of the arguments offered by Dickens against conscientious objection are unsound. (shrink)

BackgroundThe issue of stigma is very important in the battle against HIV/aids in Africa since it may affect patient attendance at healthcare centres for obtaining antiretroviral medications and regular medical check-ups. Stigmatization creates an unnecessary culture of secrecy and silence based on ignorance and fear of victimization. This study was designed to determine if there is external stigmatization of people living with HIV and AIDS by health care workers at a tertiary hospital in KwaZulu-Natal province, South Africa. The study investigated (...) the impact of knowledge of HIV/aids by HCWs on treatment of patients, as well as the comfort level and attitude of HCWs when rendering care to PLWHA.MethodsA descriptive cross sectional study was designed to collect data using an anonymous self-administered structured questionnaire from 334 HCWs. The study was conducted in clinical departments of a large multidisciplinary 922-bed tertiary care teaching hospital in Durban, KZN.ResultsOverall HCWs had an above average knowledge about HIV/aids although some gaps in knowledge were identified. Tests of statistical significance showed that there was association between level of education and knowledge of HIV/aids ; occupation and knowledge of HIV/aids ; and gender and knowledge of HIV/aids. Test for comfort level was only significant for gender, with males showing more comfort and empathy when dealing with PLWHA. The study also revealed that patients were sometimes tested for HIV without informed consent before surgery, due to fear of being infected, and there was some gossiping about patients' HIV status by HCWs, thereby compromising patient confidentiality. The majority of HCWs showed a willingness to report incidents of stigmatization and discrimination to higher authorities, for better monitoring and control.ConclusionsAlthough knowledge, attitude and comfort level of HCWs taking care of PLWHA was above average, enforcement of existing antidiscrimination laws and continuing education in medical ethics and healthcare law, would greatly improve the performance of HCWs taking care of PLWHAs. More psychological support and counselling should be provided to HCWs, to further reduce the impact of stigmatization and discrimination against PLWHA. (shrink)

This article examines how claimants alleging multiple discrimination, i.e. discrimination on the basis of two or more grounds, fare under existing antidiscrimination law. It argues that the current statutory regime, both conceptually and practically, hinders multiple discrimination claims. Specifically, the grounds of anti‐discrimination legislation may not adequately address an individual's experience of discrimination, leaving a claimant, or class of claimants, with no effective remedy. Further, in cases of both direct and indirect discrimination, claimants alleging multiple discrimination find it difficult (...) or impossible to identify an appropriate comparator. In sum, despite previous legislative and judicial failures to address issues of multiple discrimination, the forthcoming reforms to anti‐discrimination law promise merely an exacerbation, not an amelioration, of these problems. (shrink)

Advertisers in Israel routinely omit representation of women and girls as a form of adaptation to norms prevalent among ultra-Orthodox Jewish communities, by which the representation or allusion to a woman’s body, voice, or garments is considered immodest and distracting. What, if any, should be the response of antidiscrimination law to exclusionary advertisements, and why is this question worth exploring? This article argues that laws banning discrimination in the provision of products and services should also apply to advertisements that (...) categorically refrain from presenting women. Beyond protecting individual members of vulnerable groups, antidiscrimination law should partake in freeing the public sphere of messages that reinforce discriminatory values. The intended, overt, and complete denial of women’s existence merits the law’s intervention in commercial speech. After conceptualizing the harm caused to unspecified individuals and defining discriminatory advertisements, we outline the considerations that should guide the designing of rules against discriminatory ads and apply them to a set of real-life incidents of exclusionary advertisements, demonstrating how to assess the severity of discrimination in each case. Finally, we consider the free speech implications, as well as the argument that liberal multicultural accommodation renders “modest” advertisements legitimate. (shrink)

State prescription drug monitoring programs (PDMPs) use proprietary, predictive software platforms that deploy algorithms to determine whether a patient is at risk for drug misuse, drug diversion, doctor shopping, or substance use disorder (SUD). Clinical overreliance on PDMP algorithm‐generated information and risk scores motivates clinicians to refuse to treat—or to inappropriately treat—vulnerable people based on actual, perceived, or past SUDs, chronic pain conditions, or other disabilities. This essay provides a framework for challenging PDMP algorithmic discrimination as disability discrimination under federal (...) antidiscrimination laws, including a new proposed rule interpreting section 1557 of the Affordable Care Act. (shrink)

I investigate the normative and conceptual account of the relationship between public recognition and dignitarian, or egalitarian, commitments. I do so through addressing the normative dispute, sparked by legal cases such as Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Fulton v. City of Philadelphia, as to whether there are dignitarian grounds for rejecting religious exemptions to antidiscrimination laws. I argue that there are such grounds. Specifically, I argue that, if granted, such exemptions would inflict dignitary harms against (...) LGBTQ individuals by denying them the public recognition necessary for reliably sustaining civic self-respect. Such exemptions would deny this recognition in two distinct ways. First, such exemptions would institutionalize humiliation of LGBTQ individuals as market actors. Second, such exemptions would condition market access for LGBTQ individuals on unequal terms. Through making this argument, I hope to make three primary, and related, contributions: I introduce a concept of civic self-respect; I argue that the normative import of public recognition is grounded in the good of civic self-respect; and I rely on this normative framework to show how religious exemptions to public accommodations laws inflict dignitary harms. My argument is relevant to both political philosophers and legal scholars grappling with questions of why public recognition matters and what it demands. (shrink)

RESUMEN. En este artículo se analiza (y cuestiona) la tesis de la vulnerabilidad de la jurista estadounidense Martha A. Fineman. El trabajo se estructura en cinco apartados en los que el paradigma de Fineman es sucesivamente contextualizado, proyectado sobre la jurisprudencia del TEDH y comparado con otras contribuciones críticas al Derecho antidiscriminatorio. El trabajo finaliza con una breve conclusión en la que, aun reconociendo la validez del diagnóstico y la loable finalidad que mueve la teoría de Fineman, pone en duda (...) la virtualidad de la misma como inspiración de un nuevo y necesario concepto de igualdad jurídica. ABSTRACT. This article analyzes (and argues) the American legal scholar Martha A. Fineman’s thesis about vulnerability. It is divided into five sections in which Fineman’s paradigm is successively contextualized, projected to the ECtHR cases on vulnerability and compared with other critical contributions to Antidiscrimination Law. It ends with a brief conclusion that, while recognizing the validity of the diagnosis and the laudable purpose that moves Fineman’s theory, it is critical about taking it as inspiration for a new and necessary concept of legal equality. (shrink)

The increasing availability of digital data reflecting economic and human development, and in particular the availability of data emitted as a by-product of people’s use of technological devices and services, has both political and practical implications for the way people are seen and treated by the state and by the private sector. Yet the data revolution is so far primarily a technical one: the power of data to sort, categorise and intervene has not yet been explicitly connected to a social (...) justice agenda by the agencies and authorities involved. Meanwhile, although data-driven discrimination is advancing at a similar pace to data processing technologies, awareness and mechanisms for combating it are not. This paper posits that just as an idea of justice is needed in order to establish the rule of law, an idea of data justice – fairness in the way people are made visible, represented and treated as a result of their production of digital data – is necessary to determine ethical paths through a datafying world. Bringing together the emerging scholarly perspectives on this topic, I propose three pillars as the basis of a notion of international data justice: visibility, engagement with technology and antidiscrimination. These pillars integrate positive with negative rights and freedoms, and by doing so challenge both the basis of current data protection regulations and the growing assumption that being visible through the data we emit is part of the contemporary social contract. (shrink)

Statistical evidence is crucial throughout disparate impact’s three-stage analysis: during (1) the plaintiff’s prima facie demonstration of a policy’s disparate impact; (2) the defendant’s job-related business necessity defense of the discriminatory policy; and (3) the plaintiff’s demonstration of an alternative policy without the same discriminatory impact. The circuit courts are split on a vital question about the “practical significance” of statistics at Stage 1: Are “small” impacts legally insignificant? For example, is an employment policy that causes a one percent disparate (...) impact an appropriate policy for redress through disparate impact litigation? This circuit split calls for a comprehensive analysis of practical significance testing across disparate impact’s stages. Importantly, courts and commentators use “practical significance” ambiguously between two aspects of practical significance: the magnitude of an effect and confidence in statistical evidence. For example, at Stage 1 courts might ask whether statistical evidence supports a disparate impact (a confidence inquiry) and whether such an impact is large enough to be legally relevant (a magnitude inquiry). Disparate impact’s texts, purposes, and controlling interpretations are consistent with confidence inquires at all three stages, but not magnitude inquiries. Specifically, magnitude inquiries are inappropriate at Stages 1 and 3—there is no discriminatory impact or reduction too small or subtle for the purposes of the disparate impact analysis. Magnitude inquiries are appropriate at Stage 2, when an employer defends a discriminatory policy on the basis of its job-related business necessity. (shrink)

This Article examines the influence of the Americans with Disabilities Act (ADA) on affective attitudes toward children with disabilities and on the incidence of disability-selective abortion. Applying regression analysis to U.S. natality data, we find that the birthrate of children with Down syndrome declined significantly in the years following the ADA's passage. Controlling for technological, demographic, and cultural variables suggests that the ADA may have encouraged prospective parents to prevent the existence of the very class of people the Act was (...) designed to protect. We explain this paradox by showing how specific ADA provisions could have given rise to demeaning media depictions and social conditions that reinforced negative understandings and expectations among prospective parents about what it means to have a child with a disability. We discuss implications for reproduction law and antidiscrimination policy. (shrink)

The development of citizenship in the framework of European integration has been marked by conceptual innovations. This article concentrates on three of its elements: antidiscrimination rights, the concept of Union Citizenship, and the right to free movement. In these cases, either concepts were newly coined, or already-established concepts were newly interpreted in the context of the European Union by the European Commission or by the Council. In a second step, they were then incorporated into new EU citizenship laws and (...) then transferred into national legislation and national political and administrative practice. During the implementation phase in the member states, the innovations often led to conflicts related to the interpretation of the new concepts in political and administrative practice. The article discusses the related processes as a pattern of conceptual innovation by law making that is typical for the EU. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:For the Sake of Argument: Practical Reasoning, Character, and the Ethics of BeliefRobert MetcalfFor the Sake of Argument: Practical Reasoning, Character, and the Ethics of Belief. Eugene Garver. Chicago: University of Chicago Press, 2004. pp. 264. $55.00, hardcover; $22.50, paperback.Professor Garver's book, For the Sake of Argument: Practical Reasoning, Character, and the Ethics of Belief, is a provocative and illuminating study of practical reasoning, and one that develops (...) many of the ideas found in his magisterial study, Aristotle's Rhetoric: An Art of Character (Chicago: University of Chicago Press, 1994). The previous book concluded by arguing that Aristotle's Rhetoric is philosophically more interesting today than it was in Aristotle's time, in part because for us there is no polis to which the argumentative facility of rhetoric would be subordinate (1994, 233ff.). This idea is echoed in the present book when Garver writes: "The more we take disagreement to be a permanent part of the situation of practical reasoning, and not something soon to be overcome by appropriate theory or universal enlightenment, the more rhetorical facility becomes a central part [End Page 95] of practical reason" (2004, 175). It is, indeed, a fascinating feature of For the Sake of Argument that it defends the autonomy and integrity of practical reason through Aristotle's insights on the various connections between argument, persuasion, and ethos (153), and illustrates these through examples such as the South African Truth and Reconciliation Commission, the landmark Brown v. Board of Education, and subsequent Supreme Court decisions.The book is divided into eight chapters, and, as Garver explains, these represent four pairs of essays in which a more concrete or "applied" chapter is followed by a chapter that draws generalizations from the examples of the prior chapter. Among the themes most prominent in the book are the connection between reason and character, on which Garver writes, "Practical reason has its own integrity when who we are and how we think are intimately connected" (2); the compatibility, within practical reason, of truth and one's own interest; the "ampliative" nature of practical reason, such that the implications of one's beliefs can lead to discoveries unanticipated at the beginning; the connection between the ethos of a leader and the ethos of a community; and the underappreciated power of epideictic rhetoric "to affirm values and articulate new vocabularies" (178). In addressing such broad themes, Garver's attention to concrete examples, like Brown v. Board of Education, is thoroughly instructive. The Brown decision, he argues, is "an epideictic declaration that equality and antidiscrimination are fundamental American Constitutional values" (73). Brown clearly demonstrates the ampliative nature of practical reason in that the conclusion it reaches is stronger than the premises from which it begins (i.e., the Fourteenth Amendment); moreover, it generates what Garver calls an "ethical surplus" that allows for unanticipated implications that are stronger still, such as the later Court decision striking down antimiscegenation laws (71–73). This "increase" in strength in proceeding from premises to conclusion is "impossible under a purely deductive conception of rationality," Garver writes (73), yet it is well explained by his Aristotle-inspired account of practical reasoning.Surely some readers will recoil from Garver's more provocative claims, such as that "we decide... to be convinced and choose to find a line of reasoning compelling" (119), offered within a discussion of the responsibility we bear in ethical argumentation. However, the issue that is more problematic, to my mind, concerns Garver's treatment of Plato. This may seem odd, given that Plato only appears as a foil in the book—but the problem is that it is merely a caricature of Plato that Garver allows to act as [End Page 96] a foil. Garver argues against "the Platonic program which will save reason by removing it from human contamination" (3) and "the Platonic hope of replacing ethical reasoning by the certainties of science" (5). He sides with Aristotle's idea that we can aim at effectiveness and at rightness together (48, 200) over against the allegedly Platonic idea that we must choose between truth and our own interest, reason and emotion, and so forth, or else... (shrink)

In an age in which the regulatory state frequently deals with spending, licensing, and employment, the use of allocating powers is perceived as an appealing means by which to prevent discriminatory practices against individuals within illiberal communities. In addition to its easy availability, conditional funding is regarded as both an effective and—in comparison with legal prohibitions—less drastic tool for the prevention of discrimination. Such conditions are thought to be efficient because they increase the relative cost of the discriminatory practice and (...) in doing so create an economical incentive to avoid discrimination. Moreover, these conditions are thought to be less-coercive , because they still allow those subject to them to choose between the more expensive option of discrimination and the cheaper option of non-discrimination. In other words, these conditions are perceived as "Less Drastic Means." In this Article, I will argue that such a perception is false. When applied to the poor such conditionality is not less coercive than prohibitions in criminal law. It is more than reasonable to assume that attempts to rectify this flaw by exempting poor people from conditional funding will render such funding ineffective in preventing discrimination. In the final analysis—when one takes into account both the problem of the commodification of values and the inequality between rich and poor—the use of conditional finding as a means of promoting liberal values will, in most cases, be unjust. If we believe that the antidiscrimination principle has a lexical priority over a parent’s right to educate their children in accordance to their culture, we should choose the path of prohibition and abandon that of conditional funding. (shrink)

One under-theorized aspect of "multiculturalism and the antidiscrimination principle" is religious and ethnicity based political parties. With political organization, the fact of pluralism is made concrete for democratic purposes. When the struggle for empowerment is "waged within the world of democratic politics" it is waged through parties. That is the associational form modern democracies have settled on for participation, representation, and governing, and for countervailing power and regular opposition. Particularist parties and bloc voting are key instruments of political conflict (...) and, as important, of political integration. This Paper looks at the challenges these parties pose to democracy; specifically, at the principal reasons given for banning parties from participation in electoral politics. I identify four categories of justification for disqualification: violent overthrow, incitement to hate, altering the character of the nation, and outside support or control. This is a preliminary to setting out regulative principles of "defensive democracy.". (shrink)

The current explosion of genetic knowledge and the rapid proliferation of genetic tests has rightly provoked concern that we are approaching a future in which people will be labeled and disadvantaged based on genetic information. Indeed, some have already suffered harm, including denial of health insurance. This concern has prompted an outpouring of analysis. Yet almost all of it approaches the problem of genetic disadvantage under the rubric of “genetic discrimination.”This rubric is woefully inadequate to the task at hand. It (...) ignores years of commentary on race and gender demonstrating the limits of antidiscrimination analysis as an analytic framework and corrective tool. Too much discussion of genetic disadvantage proceeds as if scholars of race and gender had not spent decades critiquing and developing antidiscrimination theory.Indeed, there are multiple links among race, gender, and genetics. Dorothy Roberts has discussed the historical links between racism and genetics, while she and others have begun to map connections between gender and genetics. (shrink)

Analyzing three key cases that arose in 1993, I argue that the practice of sending in "testers" -- persons posing as job applicants -- to ferret out workplace discrimination is easier to defend from an ethical standpoint in an agency's investigation stems from an actual complaint. By contrast, defendants may rightfully challenge the legitimacy of the procedures used for "test" subjects when an investigation is based solely on the general goals of an antidiscrimination agency.

Thinking Tools is a regular feature that introduces pointers on thinking clearly and rigorously.

Thinking Tools is a regular feature that introduces pointers on thinking clearly and rigorously. Here I tell a cautionary tale about flying saucers and take a brief look at the virtues of ‘open-mindedness’.

Thinking Tools is a regular feature that introduces pointers on thinking clearly and rigorously. Here we get to grips with two everyday reasoning errors.

Thinking Tools is a regular feature that introduces tips and pointers on thinking clearly and rigorously.

Thinking Tools is a regular feature that introduces pointers on thinking clearly and rigorously. In this installment, we focus, not on faulty reasoning per se, but on an example of how we can be led astray or manipulated without our even realizing what is going on. Our critical faculties are entirely sidestepped!