The Civil Rights Act of 1964 protects against discrimination on the basis of race, color, religio... more The Civil Rights Act of 1964 protects against discrimination on the basis of race, color, religion, sex, or national origin-the so-called "protected classes." To make out a successful civil rights claim under the current legal structure, a plaintiff must first identify the protected class under which her claim arises (i.e., race or religion). She must then identify a subclass of that protected class (i.e., African American race or Christian religion) and assert that, due to her membership in or relationship to that subclass, she was treated differently in violation of the law. This Article explores the disconnect between self-identity and perceived identity in the context of assigning membership in protected classes and subclasses. Specifically, it analyzes the tension inherent in the protected class deemed "color." By tracing the relevant legislative history of the Civil Rights Act of 1964 and the jurisprudence that has developed in the wake of its passage, this Article provides critical historical context for how identity has been assigned in civil rights jurisprudence. It finds that the institutional actors-the legislature and the courts-abdicated their responsibility to define the color protected class, differentiate color from race, and give clarity to the relevant subclasses of a color discrimination claim. Recognizing that gap, parties to civil rights actions have stepped into the void. Most recently, parties have begun inserting the concept of "people of color," a term adopted by a modern progressive social movement to build solidarity and power among non-White minorities, into civil rights challenges. Such a shift in the language of civil rights law brings to the forefront the tension between a plaintiff's self-identification and the plaintiff's perceived identity that forms the basis of the defendant's discriminatory action. This Article warns against adapting the people of color concept for civil rights litigation. It argues that the category people of color, un-† Practitioner-in-Residence, American University Washington College of Law. I would like to thank my colleagues at American University Washington College of Law, particularly Ann Shalleck, Bob Dinerstein, Susan Carle, and Natalie Nanasi, as well as my former colleagues at the Department of Justice, Civil Rights Division, for helping me think through these complicated issues. I would also like to thank Martin Guggenheim and the participants in NYU's Scholarship Clinic, SpearIt for his valuable comments on an earlier draft of this Article, Briana Carlson for her valuable research assistance, and my family for their support. A special thank you to Brittany Wiser and the Denver Law Review for recognizing value in this Article and enhancing it greatly with their superb editing skills.
Low shear-wave velocity regions atop the 410 km discontinuity are widespread regional features th... more Low shear-wave velocity regions atop the 410 km discontinuity are widespread regional features that remain poorly understood. Numerous seismic studies, principally using receiver functions and ScS reverberations, have detected anomalously slow regions in the 20-50 km thick interval above the 410 km discontinuity. Because these regions are commonly 3-5% slow relative to reference models, it is generally believed that they must contain interstitial melt. Alternative explanations, such as enhanced hydration of nominally anhydrous minerals, do not seem to be able to account for the magnitude of the observed anomalies. Most, though not all, of the low velocity zones are associated with regions of present or recent subduction, suggesting that they mark regions of partial melt incited by advection of recycled volatiles into the upper mantle. H2O and CO2, alone or in combination, may be capable of inciting partial melting at these depths. Because the convecting mantle is reduced at these depths, and because CO2 solubility in melts under reducing conditions is very small, CO2 contributes negligibly to melt stabilization unless the low velocity regions are anomalously oxidized. Thus, hydrous melting is the most likely explanation for the observations. Hydrous melting atop the 410 km discontinuity can occur if the local concentration of H2O exceeds the storage capacity of peridotite. The concentrations of H2O that can be stored in olivine at 12-14 GPa along the mantle adiabat approach 0.5 wt.%, but the presence of the full peridotite mineral assemblage should stabilize partial melt at diminished H2O activity and reduce the H2O storage capacity. New experiments conducted at 10-13 GPa indicate that olivine saturated with peridotite and with hydrous partial melt has 500-1800 ppm H2O. These concentrations are similar to those that might be expected in recycled oceanic lithosphere at TZ depths or in plumes and are consistent with the hydrous melting hypothesis to explain regional observations of LVZ at 410 km. However, they are considerably greater than concentrations in typical convecting mantle sampled at ridges, and are therefore inconsistent with a global layer of melt at 410 km. Remaining challenges include accounting for the unexpectedly great thickness of observed layers, and constructing a petrologically and dynamically consistent explanation for the magnitude of shear wave anomalies, which are not easily reconciled with the fractions of melt that are petrologically likely or dynamically stable.
The Civil Rights Act of 1964 protects against discrimination on the basis of race, color, religio... more The Civil Rights Act of 1964 protects against discrimination on the basis of race, color, religion, sex, or national origin-the so-called "protected classes." To make out a successful civil rights claim under the current legal structure, a plaintiff must first identify the protected class under which her claim arises (i.e., race or religion). She must then identify a subclass of that protected class (i.e., African American race or Christian religion) and assert that, due to her membership in or relationship to that subclass, she was treated differently in violation of the law. This Article explores the disconnect between self-identity and perceived identity in the context of assigning membership in protected classes and subclasses. Specifically, it analyzes the tension inherent in the protected class deemed "color." By tracing the relevant legislative history of the Civil Rights Act of 1964 and the jurisprudence that has developed in the wake of its passage, this Article provides critical historical context for how identity has been assigned in civil rights jurisprudence. It finds that the institutional actors-the legislature and the courts-abdicated their responsibility to define the color protected class, differentiate color from race, and give clarity to the relevant subclasses of a color discrimination claim. Recognizing that gap, parties to civil rights actions have stepped into the void. Most recently, parties have begun inserting the concept of "people of color," a term adopted by a modem progressive social movement to build solidarity and power among non-White minorities, into civil rights challenges. Such a shift in the language of civil rights law brings to the forefront the tension between a plaintiffs self-identification and the plaintiff's perceived identity that forms the basis of the defendant's discriminatory action. This Article warns against adapting the people of color concept for civil rights litigation. It argues that the category people of color, unf Practitioner-in-Residence, American University Washington College of Law. I would like to thank my colleagues at American University Washington College of Law, particularly Ann Shalleck, Bob Dinerstein, Susan Carle, and Natalie Nanasi, as well as my former colleagues at the Department of Justice, Civil Rights Division, for helping me think through these complicated issues. I would also like to thank Martin Guggenheim and the participants in NYU's Scholarship Clinic, Spearlt for his valuable comments on an earlier draft of this Article, Briana Carlson for her valuable research assistance, and my family for their support. A special thank you to Brittany Wiser and the Denver Law Review for recognizing value in this Article and enhancing it greatly with their superb editing skills. I DENVER LAWREVIEW doubtedly important to developing cultural and political capacity and power, should not be inserted into civil rights litigation. Because of the history of conflating the terms color and "colored," joined with the difficulty in disentangling color from race, the existing legal structure for establishing civil rights claims leaves little room for reimagining identity. Inserting the people of color construct into civil rights challenges will undercut the potential of the law to provide broad protection against discrimination and runs counter to the goal of achieving racial equality.
As the federal government has come to rely increasingly on private companies to perform governmen... more As the federal government has come to rely increasingly on private companies to perform government functions, more businesses are testing the power of the resulting contractual relationships to shield themselves from liability, regulation, and oversight. Such nongovernmental entities seek the benefit of what we call the federal government's sovereign shield by exploiting three doctrines: preemption, derivative sovereign immunity, and intergovernmental immunity. Because these contractors provide services supporting every conceivable government action, allowing them to act with impunity puts citizens at risk across myriad aspects of their lives.
ERN: Social Choice; Clubs; Committees; Associations (Analysis) (Topic), 2018
Agencies, advocates, and courts regularly and repeatedly fail plaintiffs who have experienced int... more Agencies, advocates, and courts regularly and repeatedly fail plaintiffs who have experienced intersectional discrimination based on more than one personal identity trait. Nearly thirty years after intersectionality theory was first introduced to legal scholarship, however, its insights have yet to be effectively integrated into antidiscrimination advocacy and doctrine. This Article borrows the contributions of intersectionality theory and explores its critiques to develop a novel “cluster framework” for bridging the divide between the theory and civil rights jurisprudence. Using race-sex discrimination as a lens, the proposed framework relocates intersectional discrimination wholly within a traditionally protected class, illuminating similarities and differences in discrimination across groups and subgroups. This Article concludes with three concrete proposals to implement the cluster framework such that the antidiscrimination doctrine will better recognize and remedy intersectiona...
Researchers at the University of North Carolina-Chapel Hill teamed up with UnidosUS to explore wh... more Researchers at the University of North Carolina-Chapel Hill teamed up with UnidosUS to explore whether and how our debt-driven higher education system makes it difficult for students to finish a college program or degree. The quantitative research, gathered from more than 1,500 respondents from across the country, offers insight into the primary barriers making college completion difficult. With 35 percent of the respondents identifying as Spanish, Hispanic, or Latinx, the data shed critical light on the unique circumstances and particular challenges facing Latino students. The report contextualizes the data within existing literature, bridging the gap between prior research on college completion and student debt.
This Article considers whether the consumer protection doctrine offers a more promising avenue to... more This Article considers whether the consumer protection doctrine offers a more promising avenue to remedying certain forms of discrimination than the antidiscrimination doctrine. Using a housing discrimination story as a case study, this Article breaks down the doctrinal trade-offs between seeking redress through a consumer protection claim and an antidiscrimination claim. This Article argues that a consumer protection claim is not only a viable avenue to remedying certain forms of discrimination but also has a higher likelihood of success than a traditional antidiscrimination claim. Consumer protection claims might appear undesirable because they lack the important anti-subordination and group-based equality norms at the root of civil rights law. This Article argues that this is something of an illusion. Civil rights advocacy historically focused on economic citizenship, but formal civil rights doctrine came to omit economic protections. The antidiscrimination doctrine developed nar...
With increasing frequency, the federal government is a commercial actor, providing retail service... more With increasing frequency, the federal government is a commercial actor, providing retail services both directly and indirectly through private sector contractors. Government involvement with and in the private sector is intended to capitalize on the expertise and efficiency of businesses, benefit the taxpayer, and promote public ends. Yet it also confers advantages that benefit the executive branch and its contractor allies at the expense of consumers and states. Our prior work examined how a muddle of doctrines that form a “sovereign shield” can be exploited by contractors and the federal executive branch to evade civil liability and regulatory oversight. It tied the expansion of the sovereign shield to the relative empowerment of the federal government at the expense of the states, the executive branch at the expense of the legislative branch, and the private sector at the expense of consumers. In developing a doctrinal response to the risks identified, this Article draws on insi...
The Civil Rights Act of 1964 protects against discrimination on the basis of race, color, religio... more The Civil Rights Act of 1964 protects against discrimination on the basis of race, color, religion, sex, or national origin-the so-called "protected classes." To make out a successful civil rights claim under the current legal structure, a plaintiff must first identify the protected class under which her claim arises (i.e., race or religion). She must then identify a subclass of that protected class (i.e., African American race or Christian religion) and assert that, due to her membership in or relationship to that subclass, she was treated differently in violation of the law. This Article explores the disconnect between self-identity and perceived identity in the context of assigning membership in protected classes and subclasses. Specifically, it analyzes the tension inherent in the protected class deemed "color." By tracing the relevant legislative history of the Civil Rights Act of 1964 and the jurisprudence that has developed in the wake of its passage, this Article provides critical historical context for how identity has been assigned in civil rights jurisprudence. It finds that the institutional actors-the legislature and the courts-abdicated their responsibility to define the color protected class, differentiate color from race, and give clarity to the relevant subclasses of a color discrimination claim. Recognizing that gap, parties to civil rights actions have stepped into the void. Most recently, parties have begun inserting the concept of "people of color," a term adopted by a modern progressive social movement to build solidarity and power among non-White minorities, into civil rights challenges. Such a shift in the language of civil rights law brings to the forefront the tension between a plaintiff's self-identification and the plaintiff's perceived identity that forms the basis of the defendant's discriminatory action. This Article warns against adapting the people of color concept for civil rights litigation. It argues that the category people of color, un-† Practitioner-in-Residence, American University Washington College of Law. I would like to thank my colleagues at American University Washington College of Law, particularly Ann Shalleck, Bob Dinerstein, Susan Carle, and Natalie Nanasi, as well as my former colleagues at the Department of Justice, Civil Rights Division, for helping me think through these complicated issues. I would also like to thank Martin Guggenheim and the participants in NYU's Scholarship Clinic, SpearIt for his valuable comments on an earlier draft of this Article, Briana Carlson for her valuable research assistance, and my family for their support. A special thank you to Brittany Wiser and the Denver Law Review for recognizing value in this Article and enhancing it greatly with their superb editing skills.
Low shear-wave velocity regions atop the 410 km discontinuity are widespread regional features th... more Low shear-wave velocity regions atop the 410 km discontinuity are widespread regional features that remain poorly understood. Numerous seismic studies, principally using receiver functions and ScS reverberations, have detected anomalously slow regions in the 20-50 km thick interval above the 410 km discontinuity. Because these regions are commonly 3-5% slow relative to reference models, it is generally believed that they must contain interstitial melt. Alternative explanations, such as enhanced hydration of nominally anhydrous minerals, do not seem to be able to account for the magnitude of the observed anomalies. Most, though not all, of the low velocity zones are associated with regions of present or recent subduction, suggesting that they mark regions of partial melt incited by advection of recycled volatiles into the upper mantle. H2O and CO2, alone or in combination, may be capable of inciting partial melting at these depths. Because the convecting mantle is reduced at these depths, and because CO2 solubility in melts under reducing conditions is very small, CO2 contributes negligibly to melt stabilization unless the low velocity regions are anomalously oxidized. Thus, hydrous melting is the most likely explanation for the observations. Hydrous melting atop the 410 km discontinuity can occur if the local concentration of H2O exceeds the storage capacity of peridotite. The concentrations of H2O that can be stored in olivine at 12-14 GPa along the mantle adiabat approach 0.5 wt.%, but the presence of the full peridotite mineral assemblage should stabilize partial melt at diminished H2O activity and reduce the H2O storage capacity. New experiments conducted at 10-13 GPa indicate that olivine saturated with peridotite and with hydrous partial melt has 500-1800 ppm H2O. These concentrations are similar to those that might be expected in recycled oceanic lithosphere at TZ depths or in plumes and are consistent with the hydrous melting hypothesis to explain regional observations of LVZ at 410 km. However, they are considerably greater than concentrations in typical convecting mantle sampled at ridges, and are therefore inconsistent with a global layer of melt at 410 km. Remaining challenges include accounting for the unexpectedly great thickness of observed layers, and constructing a petrologically and dynamically consistent explanation for the magnitude of shear wave anomalies, which are not easily reconciled with the fractions of melt that are petrologically likely or dynamically stable.
The Civil Rights Act of 1964 protects against discrimination on the basis of race, color, religio... more The Civil Rights Act of 1964 protects against discrimination on the basis of race, color, religion, sex, or national origin-the so-called "protected classes." To make out a successful civil rights claim under the current legal structure, a plaintiff must first identify the protected class under which her claim arises (i.e., race or religion). She must then identify a subclass of that protected class (i.e., African American race or Christian religion) and assert that, due to her membership in or relationship to that subclass, she was treated differently in violation of the law. This Article explores the disconnect between self-identity and perceived identity in the context of assigning membership in protected classes and subclasses. Specifically, it analyzes the tension inherent in the protected class deemed "color." By tracing the relevant legislative history of the Civil Rights Act of 1964 and the jurisprudence that has developed in the wake of its passage, this Article provides critical historical context for how identity has been assigned in civil rights jurisprudence. It finds that the institutional actors-the legislature and the courts-abdicated their responsibility to define the color protected class, differentiate color from race, and give clarity to the relevant subclasses of a color discrimination claim. Recognizing that gap, parties to civil rights actions have stepped into the void. Most recently, parties have begun inserting the concept of "people of color," a term adopted by a modem progressive social movement to build solidarity and power among non-White minorities, into civil rights challenges. Such a shift in the language of civil rights law brings to the forefront the tension between a plaintiffs self-identification and the plaintiff's perceived identity that forms the basis of the defendant's discriminatory action. This Article warns against adapting the people of color concept for civil rights litigation. It argues that the category people of color, unf Practitioner-in-Residence, American University Washington College of Law. I would like to thank my colleagues at American University Washington College of Law, particularly Ann Shalleck, Bob Dinerstein, Susan Carle, and Natalie Nanasi, as well as my former colleagues at the Department of Justice, Civil Rights Division, for helping me think through these complicated issues. I would also like to thank Martin Guggenheim and the participants in NYU's Scholarship Clinic, Spearlt for his valuable comments on an earlier draft of this Article, Briana Carlson for her valuable research assistance, and my family for their support. A special thank you to Brittany Wiser and the Denver Law Review for recognizing value in this Article and enhancing it greatly with their superb editing skills. I DENVER LAWREVIEW doubtedly important to developing cultural and political capacity and power, should not be inserted into civil rights litigation. Because of the history of conflating the terms color and "colored," joined with the difficulty in disentangling color from race, the existing legal structure for establishing civil rights claims leaves little room for reimagining identity. Inserting the people of color construct into civil rights challenges will undercut the potential of the law to provide broad protection against discrimination and runs counter to the goal of achieving racial equality.
As the federal government has come to rely increasingly on private companies to perform governmen... more As the federal government has come to rely increasingly on private companies to perform government functions, more businesses are testing the power of the resulting contractual relationships to shield themselves from liability, regulation, and oversight. Such nongovernmental entities seek the benefit of what we call the federal government's sovereign shield by exploiting three doctrines: preemption, derivative sovereign immunity, and intergovernmental immunity. Because these contractors provide services supporting every conceivable government action, allowing them to act with impunity puts citizens at risk across myriad aspects of their lives.
ERN: Social Choice; Clubs; Committees; Associations (Analysis) (Topic), 2018
Agencies, advocates, and courts regularly and repeatedly fail plaintiffs who have experienced int... more Agencies, advocates, and courts regularly and repeatedly fail plaintiffs who have experienced intersectional discrimination based on more than one personal identity trait. Nearly thirty years after intersectionality theory was first introduced to legal scholarship, however, its insights have yet to be effectively integrated into antidiscrimination advocacy and doctrine. This Article borrows the contributions of intersectionality theory and explores its critiques to develop a novel “cluster framework” for bridging the divide between the theory and civil rights jurisprudence. Using race-sex discrimination as a lens, the proposed framework relocates intersectional discrimination wholly within a traditionally protected class, illuminating similarities and differences in discrimination across groups and subgroups. This Article concludes with three concrete proposals to implement the cluster framework such that the antidiscrimination doctrine will better recognize and remedy intersectiona...
Researchers at the University of North Carolina-Chapel Hill teamed up with UnidosUS to explore wh... more Researchers at the University of North Carolina-Chapel Hill teamed up with UnidosUS to explore whether and how our debt-driven higher education system makes it difficult for students to finish a college program or degree. The quantitative research, gathered from more than 1,500 respondents from across the country, offers insight into the primary barriers making college completion difficult. With 35 percent of the respondents identifying as Spanish, Hispanic, or Latinx, the data shed critical light on the unique circumstances and particular challenges facing Latino students. The report contextualizes the data within existing literature, bridging the gap between prior research on college completion and student debt.
This Article considers whether the consumer protection doctrine offers a more promising avenue to... more This Article considers whether the consumer protection doctrine offers a more promising avenue to remedying certain forms of discrimination than the antidiscrimination doctrine. Using a housing discrimination story as a case study, this Article breaks down the doctrinal trade-offs between seeking redress through a consumer protection claim and an antidiscrimination claim. This Article argues that a consumer protection claim is not only a viable avenue to remedying certain forms of discrimination but also has a higher likelihood of success than a traditional antidiscrimination claim. Consumer protection claims might appear undesirable because they lack the important anti-subordination and group-based equality norms at the root of civil rights law. This Article argues that this is something of an illusion. Civil rights advocacy historically focused on economic citizenship, but formal civil rights doctrine came to omit economic protections. The antidiscrimination doctrine developed nar...
With increasing frequency, the federal government is a commercial actor, providing retail service... more With increasing frequency, the federal government is a commercial actor, providing retail services both directly and indirectly through private sector contractors. Government involvement with and in the private sector is intended to capitalize on the expertise and efficiency of businesses, benefit the taxpayer, and promote public ends. Yet it also confers advantages that benefit the executive branch and its contractor allies at the expense of consumers and states. Our prior work examined how a muddle of doctrines that form a “sovereign shield” can be exploited by contractors and the federal executive branch to evade civil liability and regulatory oversight. It tied the expansion of the sovereign shield to the relative empowerment of the federal government at the expense of the states, the executive branch at the expense of the legislative branch, and the private sector at the expense of consumers. In developing a doctrinal response to the risks identified, this Article draws on insi...
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