Deborah Hellman (University of Virginia School of Law) has posted The Future of Classification (Illinois Law Review, forthcoming) on SSRN. Here is the abstract:
Equal protection doctrine requires that laws which treat people differently on the basis of race and sex are subject to a higher level of judicial scrutiny than are other laws. Yet it is surprisingly unclear when that occurs. Indeed, in United States v. Skrmetti, this was precisely the question at issue. And, in the aftermath of the Supreme Court’s decision in Students for Fair Admissions v. Presidents and Fellows of Harvard College (“SFFA”), courts will be required to determine whether particular admissions practices treat applicants differently on the basis of race and when they do not. This Symposium Article explores the tensions between how that question is answered in Skrmetti and how an analogous question is likely to be answered in litigation exploring the implications of SFFA—by justices in both the majority and dissent. In doing so, this Symposium Article aims to demonstrate that it is difficult to determine whether in fact laws treat people differently on the basis of race or sex and to invite scholars and jurists to develop answers to that question by keeping in view cases in which their intuitions point in opposite directions.
Highly Recommended!
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