Two Concepts of Discrimination

Article — Volume 102, Issue 4

102 Va. L. Rev. 895
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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 they can reveal which controversies involve a philosophical muddling of the two competing conceptions and which will require the Supreme Court to choose. 

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  Volume 102 / Issue 4  

Two Concepts of Discrimination

By Deborah Hellman
102 Va. L. Rev. 895

Executive Federalism Comes to America

By Jessica Bulman-Pozen
102 Va. L. Rev. 953

The Failure of Liability in Modern Markets

By Yesha Yadav
102 Va. L. Rev. 1031

Taking the Path Less Travelled: FOIA’s Impact on the Tension Between the D.C. Circuit and Vermont Yankee

By Matthew S. Brooker
102 Va. L. Rev. 1101