Topics

In recent years, antidiscrimination scholars have focused on the productive possibilities of the “universal turn,” a strategy that calls on attorneys to convert particularist claims, like race discrimination claims, into broader universalist claims that secure basic dignity, liberty, and fairness rights for all. Scholars have urged litigators to employ universalist strategies in constitutional and voting rights cases, as well as in employment litigation. Thus far, however, arguments made in favor of universalism have largely been abstract and theoretical and therefore have failed to fully consider the second-order effects of universalist strategies on the ground. In this Article, we challenge the prevailing arguments in favor of universalism by exploring the market consequences as lawyers shift from particularist Title VII race discrimination claims to universalist Fair Labor Standards Act claims. Drawing on a review of case filing statistics and an inductive, purposeful sample of attorney interviews, we describe a phenomenon we call “post-racial hydraulics,” which are a set of non-ideological, economic, and pragmatism-based drivers produced by the trend toward universalism. Post-racial hydraulics must be understood as key but previously unexplored factors in racial formation. Left unchecked, these non-ideological drivers will have substantive ideological effects, as they threaten to fundamentally reshape the employment litigation market and alter our understanding of race discrimination.

Normally we don’t think of administrative agencies as policing constitutional equality norms. There’s a good reason for this—courts are often thought of as the “ultimate expositor” of constitutional meaning, while agencies are thought of as undertaking not constitutional interpretation, but statutory implementation. But recently scholars have explored the ways in which constitutionalism enters agency decisionmaking—commonly referred to as “administrative constitutionalism.” Administrative constitutionalism theories loosen the assumption that courts have a monopoly on constitutional understanding, and instead recognize agencies as constitutional actors in their own right. This Note explores how agencies have engaged in administrative constitutionalism to police LGBT equality rights—often in ways that differ markedly from judicial applications of equal protection. It then offers a defense of these practices, arguing that agencies have acted in the face of widespread underenforcement of equality norms by the judiciary owing largely to institutional considerations that—justified or not—have no bearing on the meaning of equal protection.

Brennan Lecture

A series of changes within civil procedure over the past few decades—including the rise of private arbitration, the accompanying decline of public adjudication, and the erection of barriers to class actions—have diminished the economic power of workers, consumers, and diffuse economic actors. This Article demonstrates that avoiding these economic consequences was a central goal of those who crafted American federal civil procedure in the first place. Driven to action by the procedural issues involved in labor injunction cases, leading procedural reformers behind the modern regime strove to make American federal civil procedure sensitive to questions of political economy and designed it to mitigate rather than reflect economic power imbalances. This Article connects their procedural reform efforts in the enactment of the Norris-LaGuardia Act of 1932 to the rise of the Federal Rules of Civil Procedure of 1938, and, in so doing, reveals the unexplored progressive economic foundations of federal civil procedure.

This history provides a platform for a more conceptual analysis about civil procedure and economic power. The Article embeds the Norris-LaGuardia Act’s procedural provisions in the rise of the federal government’s facilitation of the “countervailing power” of workers, and begins to articulate the procedural dimensions of economic empowerment. While countervailing power is typically thought of as being facilitated by substantive law, the Norris-LaGuardia Act demonstrates how civil procedure can facilitate the exercise of countervailing power by providing economically less-resourced parties with open hearings and structuring procedure to protect their ability to amass power through association. More broadly, and returning to present issues, this Article argues that the recent transformations in civil procedure both undermine the economic purposes that were central to the regime’s rise and diminish the ability of diffuse economic actors to exercise counter- vailing power—threatening once-enduring procedural commitments.

Political gerrymandering has been a feature of our republic since the early days of the United States. The majority of states in the U.S. allow state legislators to draw the district lines for legislative elections. Legislator-led redistricting is plagued with legislator conflict of interest, producing elections that are spectacularly uncompetitive and rampant with partisanship. In the process, the interests of voters are in conflict with the party and individual interests of legislators, threatening the legitimacy of our republican form of government. The results are often incumbent entrenchment in “safe seats” and overt partisan-based district manipulation. While not necessarily indicative that the will of the people is being usurped by the ambitions of legislators, one must inevitably ask, are voters choosing their legislators or are legislators choosing their voters? Until recently, the Supreme Court has taken a “hands-off” approach to remedying the negative effects of the partisan gerrymandering that occurs in states employing legislator-led redistricting. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court upheld Arizona voters’ right to transfer redistricting authority from state legislators to an independent commission of citizens via ballot initiative. This Note argues that the delegation theory applied by the Court in the Arizona Independent Redistricting Commission decision, and the authority of voters to be the supreme regulators of the political market, is supported by the Framers’ vision of political competition and accountability as articulated in The Federalist Papers.

Courts routinely begin their analyses of discrimination claims with the question of whether the plaintiff has proven he or she is a “member of the protected class.” Although this refrain may sometimes be an empty formality, it has taken on real bite in a significant number of cases. For example, one court dismissed a claim by a man who was harassed with anti-Mexican slurs because he was of African American rather than Mexican ancestry. Other courts have dismissed sex discrimination claims by LGBT plaintiffs on the ground that LGBT status is not a protected class. Yet other courts have dismissed claims by white people alleging they were harmed by white supremacist violence and straight people alleging they were harmed by homophobic harassment. This Article terms this phenomenon “protected class gatekeeping.” It argues that protected class gatekeeping is grounded in dubious constructions of antidiscrimination statutes, and that its routine use prevents equality law from achieving its central aim: dismantling sexism, racism, homophobia, religious intolerance, and other such biases. While past scholarship has identified certain forms of protected class gatekeeping, it has not recognized the scope of the problem or addressed the progressive intuitions that underlie it. Critical examination of protected class gatekeeping is of pressing importance as legislatures, courts, and legal scholars debate new statutory language and doctrinal frameworks for discrimination claims.