Kenneth W. Simons, Discrimination is a Comparative Injustice: A Reply to Hellman, 102 Va. L. Rev. Online 85 (2016).
In Two Concepts of Discrimination, Professor Hellman lucidly and systematically explains the difference between comparative and noncomparative conceptions of discrimination. Although other legal scholars and philosophers have addressed the distinction between comparative and noncomparative justice, she profitably applies the distinction to current controversies about the meaning and scope of antidiscrimination norms in statutory and equal protection law. Hellman believes that her analysis illuminates a number of issues in contemporary constitutional discrimination jurisprudence — why the supposed clash between equal protection doctrine and Title VII’s disparate impact approach is illusory, why equal protection doctrine is ambivalent about whether irrational government action is constitutionally problematic, and why equal protection and due process reasoning should only sometimes be combined.
This Essay offers some friendly criticisms of Hellman’s approach. I share her belief that the distinction between comparative and noncomparative justice is critical for understanding constitutional doctrine. I disagree, however, about how, and even whether, that distinction should apply to antidiscrimination norms. Moreover, her analysis does not fully succeed in explaining the three contemporary issues that she highlights.