‘With Liberty and Justice
for All’?
Thinking Like a Lawyer
• Vocabulary
• New categories
• Consequences assigned to legal categories
e.g. fault-based approach of tort law—
law of accidents—asks who is to blame
• Precedent relies on sorting out “which
one of these is not like the others?”
Law school trains people to
think like lawyers: it “valorizes
sorting, rewards people who
think fast but not necessarily
deeply, and relies upon uniform
rules and standards”
Guinier, 2
Basic Method of Legal Analysis
• Simplify to focus on a few traits
• Traits most salient to the law
• Use those traits as basis for comparison
with governing rules and applicable
precedents
(Minow, 2)
Minow suspects this method is
harmful—why?
• Can’t assume categories just exist—we
invest them with meaning and
consequences
• We use categories to discriminate, to
“divide the world”
• We focus on some traits and not others
• We “label” differences in exclusionary
ways
Legal doctrines
• Establish bounded categories
• Lawyers must fit their arguments into
narrow, either/or categories
• Lawyers’ role is to disagree
• Judges decide whether doctrine applies
Minow, 8
Boundaries Based on
Difference
• Law establishes limits of individual
obligations to one another
• Legal boundaries distinguish self from
others, normal from deviant
• Legal rules often falter when conflicts
arise within ongoing relationships
• Law neglects relationships between
people
PROBLEM
• How can equality mean treating people the
same, when similar treatment affects people
differently?
• Don’t we need “equality” precisely because we
are NOT the same?
• Connections between us are precondition for
boundaries and categories
• Legal rules set up boundaries and relationships
based on social norms and values
• Our question is what those are, and should be
EPISTEMOLOGY
• Way of knowing
• How is knowledge formed, articulated,
and translated into practice?
• We know the world from a particular
perspective shaped by our experiences
• Personal, medical, legal perspectives
Behuniak, 2
Medicine’s Epistemology
•
•
•
•
Start with the physical
Clinical practice, applied science
Ethical obligations of physician
Rely on interpretive, diagnostic, inductive
reasoning (from particular case to
general theory)
Law’s Epistemology
•
•
•
•
•
Establish the “facts”
Identify the controlling legal issue
Impartial decision making
Process oriented
Proceeds inductively from specific case to
towards general rule
• Uniform application of general principles
ETHIC OF JUSTICE
1. Judgment objective
2. Decision arrived at through judicial
reasoning
3. Rules are applied universally
Behuniak, 11
Countermajoritarian
difficulty
How can a handful of appointed
justices negate the actions of
elected representatives in a
so-called democracy?
Behuniak, 12
LEGAL NORMS
• A person suffered actual, direct injury
• Controversy framed in terms of clashing
interests or constitutional rights
• Focus on legal process, not result
• Which constitutional guarantees violated,
and how?
LAST LEGAL NORM
•
Which test of constitutionality should
be used?
1. Strict scrutiny: law necessary for
compelling state interest
2. Rational basis: law related to legitimate
state interest
3. Intermediate: important state interest
STRICT SCRUTINY
• Laws that use
“suspect
classifications” based
on race or national
origin
• Laws in which a
“fundamental right”
is at stake
A fundamental right is an
explicit constitutional provision
or
a longstanding social value
deeply embedded
in American life
Patient’s Epistemology
• Begins with concrete experience
• Often framed within context of choice, options,
self-determined decisions
• Often guided by principles of relationships,
commitments, and caring
• Draws on emotional, intuitive, and partial
knowledge
• Does not exclude reason but does not elevate it
Comparative Epistemology
•
•
•
•
•
See chart, Behuniak, p. 28
Starting point
Problem definition or framing
Guiding principles
Method applied
3 forms of information
available to courts
• Party briefs: written legal arguments
presented by both parties
• Amicus curiae briefs: written by
interested third parties
• Oral arguments and replies to questions
from the bench
---ism
the translation of difference
into inequality and exclusion
THE EQUALITY /
DIFFERENCE DILEMMA
EQUAL TREATMENT
• equal opportunity
laws
• equal protection
before the law
DIFFERENT
TREATMENT
• sex-based laws
• protective legislation
based on women’s
differences from men
THE EQUALITY/
DIFFERENCE DILEMMA IN
PLAIN ENGLISH
Can we recognize that
men and women are different,
and at the same time
recognize that they should be
treated equally?
Abigail Adams writing to her
husband, John Adams (1776)
…in the new Code of Laws…I desire
you remember the Ladies…. Do not
put such unlimited power in the hands
of the Husbands. Remember all men
would be tyrants if they could. We
will not hold ourselves bound by any
laws in which we have no voice, or
Representation.
THOMAS JEFFORSON
“Were the state a pure democracy
there would still be
excluded from our deliberation
women, who, to prevent
deprivation of morals and
ambiguity of issues,
should not mix promiscuously
in gatherings of men.”
SEPARATE SPHERES
• “Separate but equal”
• Public/private split
• Legal justifications for social segregation
on the basis of race and gender
The Progressive Period
Protecting Women
on the Basis of Their Difference
from Men
SEX-BASED LAWS =
PROTECTIVE
LEGISLATION
• “Progressive” era: 1900s-1910s
• Laws that protect women and children in
the workplace
• Based on difference of women and
children from men
MAJOR PROGRESSIVE
REFORMS
• Pure Food and Drug Act (1905)
• Mann Act (1910)
• Volstead Act (Prohibition) (1919)
repealed in 1933
• Harrison Act (1914)
The Brandeis Brief, Muller v.
Oregon (1908)
“Women are fundamentally weaker
than men in all that makes for
endurance: in muscular strength, in
nervous energy, in the powers of
persistent attention and
application….”
Women “suffer from periodic semipathological states.”
EXAMPLES OF
PROGRESSIVE
PROTECTIONS
• Employers must provide heat, light, and
sanitary working conditions
• Employers must compensate for death on
the job
• Minimum wage
• Hour laws
The Legal Framework
of Equality
Equal Pay Act (1963)
Mandated that men and women
receive “equal pay for equal work”
EQUALITY-BASED LAWS
The 14th Amendment (1868)
the first legal guarantee of equality
Provides “due process of law” and
“equal protection before the law”
AMENDMENT XIV (14)
• All persons born or naturalized in the
U.S. are citizens of the U.S.
• No state shall deprive any person life,
liberty, or property without due process
of law
• Nor deny to any person equal protection
of the laws
AMENDMENT XIV CONT’D
• But Section 2 indicates that political
representation is proportionate to the
“whole number of male citizens 21 years
of age in the state”
AMENDMENT XV (1870)
• The right of citizens of the U.S. to vote shall
not be denied or abridged…on account of
race, color, or previous condition of
servitude
• Granted the franchise to men of color, but
not women of color
EQUAL RIGHTS
AMENDMENT
• Although introduced repeatedly since
1923, a federal Equal Rights Amendment
(ERA) has never passed
• Text read: “Equality of rights under the
law shall not be denied or abridged…on
account of sex.”
EQUALITY-BASED LAWS
The second legal guarantee of
equality was the
Civil Rights Act (1964)
Title VII of that Act remains our
most comprehensive equality law
TITLE VII
Employers may not “discriminate
against any individual…because of
such an individual’s race, color,
religion, sex, or national origin.”
Employers may hire workers of
only one sex on the basis of “bona
fide occupational qualifications”
(BFOQs).
THE THIRD LEGAL
GUARANTEE OF EQUALITY
• Affirmative Action policies
• Intended as “temporary fix” until sex,
race, color, religion, and national origin
were no longer obstacles to equality
• Equality of opportunity--NOT equal
outcome
THE STRANGE CASE OF
PREGNANT WORKERS
“Equal Treatment”
or “Special Treatment”?
PREGNANCY
DISCRIMINATION ACT
(1978)
• Amended Title VII so that discrimination
against “pregnant persons” was
considered discrimination against women
• Pregnant workers must be treated in a
non-discriminatory fashion