Abstract

https://ssrn.com/abstract=2652859
 


 



Two Concepts of Discrimination


Deborah Hellman


University of Virginia - School of Law

August 2015

Virginia Law Review, Vol. 102, 2016, Forthcoming
Virginia Public Law and Legal Theory Research Paper No. 47

Abstract:     
A philosophical battle is being waged for the soul of Equal Protection jurisprudence. One side sees discrimination as a comparative wrong occurring only where a law or policy fails to treat people as equals. The other side embraces a fundamentally noncomparative view that defines impermissible discrimination as a failure to treat each individual as she is entitled to be treated. This Article distinguishes between these conceptions, demonstrates why they are normatively distinct, and identifies specific and seemingly unrelated controversies in modern Equal Protection jurisprudence that are in fact manifestations of this single schism. The insights in this Article cannot resolve all of these doctrinal controversies, but it can reveal which controversies involve a philosophical muddling of the two competing conceptions and which will require that the Supreme Court to choose between the two.

Number of Pages in PDF File: 48

Keywords: equal protection, discrimination, disparate impact, rationality, due process


Open PDF in Browser Download This Paper

Date posted: August 30, 2015  

Suggested Citation

Hellman, Deborah, Two Concepts of Discrimination (August 2015). Virginia Law Review, Vol. 102, 2016, Forthcoming; Virginia Public Law and Legal Theory Research Paper No. 47. Available at SSRN: https://ssrn.com/abstract=2652859

Contact Information

Deborah Hellman (Contact Author)
University of Virginia - School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States

Feedback to SSRN


Paper statistics
Abstract Views: 1,138
Downloads: 308
Download Rank: 76,354