Blog of the International Journal of Constitutional Law

Virtual Book Review Roundtable: “A Theory of Discrimination Law” Featuring Tarun Khaitan, Deborah Hellman and Julie Suk

Richard Albert, Boston College Law School

We are pleased to inaugurate a new virtual book review roundtable series at I-CONnect. We will periodically assemble a group of scholars–a couple of reviewers along with the author–to discuss a recent book in comparative public law.

In the first installment in this series, Deborah Hellman and Julie Suk comment on Tarun Khaitan’s new book on A Theory of Discrimination Law, published just last year by Oxford University Press. Khaitan then replies, and an open conversation follows.

Deborah Hellman is currently the D. Lurton Massee Professor of Law and the F. D. G. Ribble Professor of Law at the University of Virginia School of Law. Author of When is Discrimination Wrong? (Harvard University Press, 2008) and co-editor of The Philosophical Foundations of Discrimination Law (Oxford University Press, 2013), Hellman focuses her research on discrimination and equality.

Julie Suk is a Professor of Law at Benjamin N. Cardozo School of Law. An expert in comparative equality law, Suk has published major works in the Columbia Law Review, the Stanford Law Review and the International Journal of Constitutional Law. Her research has developed a transnational perspective on the theory and practice of antidiscrimination law.

Tarun Khaitan is an Associate Professor and the Hackney Fellow in Law at Wadham College, Oxford University. A graduate of National Law School (Bangalore) and Oxford University, he has published papers in the Oxford Journal of Legal Studies, the Modern Law Review and the Law Quarterly Review. In his new book, Khaitan offers a a philosophical account and defense of discrimination law.

Here is a short description of his book:

Marrying legal doctrine from five pioneering and conversant jurisdictions with contemporary political philosophy, this book provides a general theory of discrimination law. Part I gives a theoretically rigorous account of the identity and scope of discrimination law: what makes a legal norm a norm of discrimination law? What is the architecture of discrimination law? Unlike the approach popular with most textbooks, the discussion eschews list-based discussions of protected grounds, instead organising the doctrine in a clear thematic structure.

This definitional preamble sets the agenda for the next two parts. Part II draws upon the identity and structure of discrimination law to consider what the point of this area of law is. Attention to legal doctrine rules out many answers that ideologically-entrenched writers have offered to this question. The real point of discrimination law, this Part argues, is to remove abiding, pervasive, and substantial relative group disadvantage. This objective is best defended on liberal rather than egalitarian grounds.

Having considered its overall purpose, Part III gives a theoretical account of the duties imposed by discrimination law. A common definition of the antidiscrimination duty accommodates tools as diverse as direct and indirect discrimination, harassment, and reasonable accommodation. These different tools are shown to share a common normative concern and a single analytical structure. Uniquely in the literature, this Part also defends the imposition of these duties only to certain duty-bearers in specified contexts. Finally, the conditions under which affirmative action is justified are explained.

The full discussion runs for 55 minutes, and is available here.


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