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This Article posits that the Supreme Court’s decision in Ricci v. DeStefano does not evaluate all claims of discrimination on a level playing field but rather “whitens” discrimination and “races” test fairness. The authors explicate how Ricci whitens discrimination by reframing antidiscrimination law’s presumptions and burdens to focus on disparate treatment of whites as the paradigmatic and...

In the vivid imagination of Delaware courts, the shareholder franchise is “the ideological underpinning” upon which corporate power rests. A corporate election to choose who should lead the firm is corporate democracy at work since such elections give shareholders the power “to turn the board out.” However, in reality, the vast majority of corporate elections are ho-hum affairs. The current board...

On March 23, 2010, President Barack Obama signed into law the Patient Protection Affordable Care Act (Affordable Care Act), the most far-reaching healthcare reform legislation since the establishment of the Medicare program in 1965. The Affordable Care Act directs the U.S. Department of Health and Human Services (HHS) to establish a minimum level of health benefits, called the essential health...

Since the late 1980s, a majority of states have enacted statutes protecting nondisclosure of stigmas affecting property in residential real estate transactions. While many of these statutes have elements in common, there are substantial differences with respect to the set of stigmas covered, the duty to answer direct inquiries concerning particular stigmas, the relevance of time elapsed since the...

Sexuality and Gender Law: Assessing the Field, Envisioning the Future

For a very long time, issues of sexuality and gender remained outside the boundaries of what was considered important legal scholarship. Indeed, the very presence in the legal academy of the concepts of sexuality and gender was viewed as barely legitimate, certainly not respectable, and, in intellectual terms, at best facetious—or, to let Justice White rest in peace, at best frivolous.

In her provocative recent book, Split Decisions, Janet Halley argues that left political movements have suffered from a “convergentist” assumption: They assume that forms of critique or intervention that serve the interest of one group, for example, feminists, also serve the interest of other groups, for example, gay/lesbian or queer activists. She contends that we ought to set aside this kind of...

This Article interrogates the sexual morality of Equal Protection. Gender equality jurisprudence reveals the unacknowledged influence of a traditional, heteronormative conception of sexual morality—the sexual double standard—that often sets the parameters of gender equality. When the U.S. Supreme Court frames a gendered law as limiting participation in education, the workplace, or civic life, it...

This Article highlights both the rewards in accepting and the risks in rejecting a claim of sex discrimination as one constitutional basis for invalidating restrictions on marriage for same-sex couples. It argues that recognition of same-sex marriage and elimination of enforced sex roles are as inextricably intertwined as the duck is with the rabbit in the famous optical illusion. As the Article...

Critics of litigation seeking to establish the right of same-sex couples to marry argue that it has produced a backlash undercutting the movement for marriage equality. In this account, movement lawyers emerge as agents of backlash: naively turning to the courts ahead of public opinion, ignoring more productive political alternatives, and ultimately hurting the very cause they purport to advance...

Sexuality, gender, and the law now constitutes an important field of legal inquiry and scholarship. This Article traces the evolution of the “big idea” in this area: Contrary to natural law assumptions, the nation is moving decisively toward the norm that sexual and gender variation are typically benign and not malignant. Today, this liberal norm is hotly contested by both traditionalists who...

As once-accepted empirical justifications for discriminating against lesbians and gay men have fallen away, the major stumbling block to equality lies in a set of intuitions, impulses, and so-called common sense views regarding sexual orientation and gender. This Article takes up these impulses and views, which I characterize as “sticky intuitions,” to consider both their sustained influence and...

We have arrived at a crossroads in terms of the intersection between law, sexuality, and globalization. Historically, and even today, the majority of accounts of LGBT migration tend to remain focused, in one scholar’s words, on “a narrative of movement from repression to freedom, or a heroic journey undertaken in search of liberation.” Within this narrative, the United States is usually cast as a...