Papers by Deborah Hellman
Routledge eBooks, May 15, 2017
Election Law Blog, Jul 1, 2019
Social Science Research Network, Mar 12, 2020
U.S. constitutional law prohibits the use of sex as a proxy for other traits in most instances. F... more U.S. constitutional law prohibits the use of sex as a proxy for other traits in most instances. For example, the Virginia Military Institute [VMI] may not use sex as a proxy for having the “will and capacity” to be a successful student. At the same time, sex-based classifications are constitutionally permissible when they track so-called “real differences” between men and women. Women and men at VMI may be subject to different training requirements, for example. Yet, it is surprisingly unclear when and why some sex-based classifications are permissible and others not. This question is especially important to examine now as the use of predictive algorithms, some of which rely on sex-based classifications, is growing increasingly common. If sex is predictive of some trait of interest, may the state – consistent with equal protection – rely on an algorithm that uses a sex-based classification? This Article presents a new normative principle to guide the analysis. I argue that courts ought to ask why sex is a good proxy for the trait of interest. If prior injustice is likely the reason for the observed correlation, then the use of the sex classification should be presumptively prohibited. This Anti-Compounding Injustice principle both explains and justifies current doctrine better than the hodge-podge of existing rules and concepts and provides a useful lens through which to approach new cases.
Social Science Research Network, Aug 24, 2016
Virginia Law Review, 2020
The conversation, Apr 20, 2020
Social Science Research Network, May 5, 2021
Social Science Research Network, Aug 1, 2015
A philosophical battle is being waged for the soul of Equal Protection jurisprudence. One side se... more A philosophical battle is being waged for the soul of Equal Protection jurisprudence. One side sees discrimination as a comparative wrong occurring only where a law or policy fails to treat people as equals. The other side embraces a fundamentally noncomparative view that defines impermissible discrimination as a failure to treat each individual as she is entitled to be treated. This Article distinguishes between these conceptions, demonstrates why they are normatively distinct, and identifies specific and seemingly unrelated controversies in modern Equal Protection jurisprudence that are in fact manifestations of this single schism. The insights in this Article cannot resolve all of these doctrinal controversies, but it can reveal which controversies involve a philosophical muddling of the two competing conceptions and which will require that the Supreme Court to choose between the two.
Foundations of Indirect Discrimination Law
This chapter resurrects, conceptualizes and defends an old account of why disparate impact discri... more This chapter resurrects, conceptualizes and defends an old account of why disparate impact discrimination sometimes wrongs its victims. In Local 189, United Papermakers v. United States, a Fifth Circuit case from 1969, the court prohibited the use of a seniority system that effectively kept African-Americans from better paying jobs within the company on the grounds that “[w]hen an employer adopts a system that necessarily carries forward the incidents of discrimination into the present, his practice constitutes on-going discrimination, unless the incidents are limited to those that safety and efficiency require.” Drawing on that insight, I argue that sometimes laws, policies and practices that produce a disparate impact on a protected group compound prior injustice and are, for that reason, wrong. I begin by arguing for a general duty to avoid compounding injustice. Next, I turn to disparate impact discrimination and suggest that some paradigm cases involve the wrong of compounding injustice. Finally, I explore whether this account provides a reason to describe the wrong at issue as a form of discrimination.
As escalating COVID-19 cases threatened to overwhelm health care systems, many states issued new ... more As escalating COVID-19 cases threatened to overwhelm health care systems, many states issued new clinical triage protocols or resurrected old ones adopted in anticipation of a future pandemic or emergency that direct how to allocate scarce resources like ventilators. The conditions that give rise to medical rationing may yet recur as the current pandemic unfolds, or they may emerge in the context of a future epidemic or natural disaster. In either case, hospitals will be forced to make difficult moral and legal decisions about who gets access to life-saving care. These state protocols have one overriding goal: they endeavor to save as many lives as possible. While this goal is important, pursuing it in a single-minded fashion will likely harm people with disabilities and other disadvantaged groups in a way that is inconsistent with existing law. To date, most of the attention focused on these protocols takes issue with explicit exclusions of people who have certain conditions or dis...
New republic (New York, N.Y.), Jan 27, 1998
Discrimination, 2020
U.S. constitutional law prohibits the use of sex as a proxy for other traits in most instances. F... more U.S. constitutional law prohibits the use of sex as a proxy for other traits in most instances. For example, the Virginia Military Institute [VMI] may not use sex as a proxy for having the “will and capacity” to be a successful student. At the same time, sex-based classifications are constitutionally permissible when they track so-called “real differences” between men and women. Women and men at VMI may be subject to different training requirements, for example. Yet, it is surprisingly unclear when and why some sex-based classifications are permissible and others not. This question is especially important to examine now as the use of predictive algorithms, some of which rely on sex-based classifications, is growing increasingly common. If sex is predictive of some trait of interest, may the state – consistent with equal protection – rely on an algorithm that uses a sex-based classification? This Article presents a new normative principle to guide the analysis. I argue that courts ou...
Virginia Law Review in Brief, 2012
Conference on Fairness, Accountability and Transparency, 2018
This Article challenges the central premise of our campaign finance law, namely that restrictions... more This Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the grounds that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these other rights, this Article notes that sometimes constitutional rights generate a penumbral right to spend money and sometimes they do not. Thus the fact that money facilitates the exercise of a right is insufficient to show that the right includes a penumbral right to give or spend money. The first contribution this Article makes is to identi...
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Papers by Deborah Hellman