Discrimination Is a Comparative Injustice: A Reply to Hellman

17 Pages Posted: 26 Sep 2016 Last revised: 28 Sep 2016

Kenneth W. Simons

University of California, Irvine School of Law

Date Written: September 26, 2016

Abstract

In Two Concepts of Discrimination, Professor Hellman lucidly and systematically explains the difference between comparative and noncomparative conceptions of discrimination. Although other legal scholars and philosophers have addressed the distinction between comparative and noncomparative justice, she profitably applies the distinction to current controversies about the meaning and scope of antidiscrimination norms in statutory and equal protection law. Hellman believes that her analysis illuminates a number of issues in contemporary constitutional discrimination jurisprudence — why the supposed clash between equal protection doctrine and Title VII’s disparate impact approach is illusory, why equal protection doctrine is ambivalent about whether irrational government action is constitutionally problematic, and why equal protection and due process reasoning should only sometimes be combined.

This Essay offers some friendly criticisms of Hellman’s approach. I share her belief that the distinction between comparative and noncomparative justice is critical for understanding constitutional doctrine. I disagree, however, about how, and even whether, that distinction should apply to antidiscrimination norms. Moreover, her analysis does not fully succeed in explaining the three contemporary issues that she highlights.

Keywords: equal protection, equality, discrimination, rationality, constitutional law

Suggested Citation

Simons, Kenneth W., Discrimination Is a Comparative Injustice: A Reply to Hellman (September 26, 2016). Virginia Law Review Online, Vol. 102, July 2016, pp. 85-100; UC Irvine School of Law Research Paper No. 2016-48. Available at SSRN: https://ssrn.com/abstract=2843759

Kenneth W. Simons (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Room 3800H
Irvine, CA 92697-1000
United States

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