Martha Albertson Fineman (Emory University School of Law) has posted Beyond Equality and Discrimination (SMU Law Review, Forthcoming) on SSRN. Here is the abstract:
I believe that one of the most significant questions for the twenty-first century for those concerned with “the disadvantaged” has to be whether and to what extent this equality/antidiscrimination logic has lost its effectiveness as a critical tool and what, if anything, should be the foundation of the rationale that supplements or even replaces it. To raise questions about the current dominant paradigm is not to argue that equality and antidiscrimination are not important or necessary concepts. Equality and antidiscrimination were unarguably essential steps in the evolution of a just society. Prior to the mid-twentieth century, formal rules, as well as functioning norms, were built on assertions of fundamental differences among groups defined by gender, race, and other characteristics. These distinctive group categories also established a world of hierarchical, legalized identities in which some were susceptible to different, often demeaning treatment. However, with the formal distinctions now removed and equal access the norm, it becomes apparent that the problems in society often transcend discrimination and exclusion from social institutions. Indeed, there may be substantial problems with those institutions and their organization not revealed by the jurisprudential logic that flows from an equality/antidiscrimination paradigm, which may place obstacles on the ability to remedy (or even address) existing inequalities.