Post-Racial Hydraulics: The Hidden Dangers of the Universal Turn

47 Pages Posted: 23 Feb 2015 Last revised: 28 Apr 2015

See all articles by Zev J. Eigen

Zev J. Eigen

Syndio Solutions

Camille Gear Rich

USC Gould School of Law

Charlotte Alexander

Georgia State University - Risk Management & Insurance Department; Georgia State University College of Law

Date Written: March 5, 2015

Abstract

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 been largely 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. Derived from a preliminary review of case filing statistics and qualitative data from a purposeful sample of attorney interviews, our research has uncovered forces we describe as “post-racial hydraulics,” a set of non-ideological, economic, and pragmatism-based drivers produced by the trend toward universalism. We explain why “post-racial hydraulics” must be understood as key but previously unexplored factors in racial formation. Evidence suggests that, 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.

Keywords: discrimination, Title VII, civil rights, FLSA, fair labor standards act, wage and hour, universalism, particularism

JEL Classification: K10, K30

Suggested Citation

Eigen, Zev J. and Rich, Camille Gear and Alexander, Charlotte, Post-Racial Hydraulics: The Hidden Dangers of the Universal Turn (March 5, 2015). New York University Law Review, Forthcoming; USC Law Legal Studies Paper No. 15-9; USC CLASS Research Paper No. CLASS15-9; Northwestern Public Law Research Paper No. 15-09; Georgia State University College of Law, Legal Studies Research Paper No. 2015-11. Available at SSRN: https://ssrn.com/abstract=2568135 or http://dx.doi.org/10.2139/ssrn.2568135

Zev J. Eigen (Contact Author)

Syndio Solutions ( email )

26 Broadway
New York, NY 10004
United States

Camille Gear Rich

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States
213-740-9043 (Phone)

HOME PAGE: http://lawweb.usc.edu/who/faculty/directory/contactInfo.cfm?detailID=68018

Charlotte Alexander

Georgia State University - Risk Management & Insurance Department ( email )

35 Broad Street
Room 1142
Atlanta, GA 30303
United States

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

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