This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructions, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice that is implicitly encompassed by a ban on discrimination pushes discrimination law in promising directions. Recognizing retaliation as a form of discrimination challenges the dominant anti-differentiation model of discrimination and promotes a broader conception of discrimination as the preservation of race and gender privilege. In addition, recognizing protection from retaliation as implicit in legal proscriptions on discrimination furthers the democratic underpinnings of discrimination law by adding content to the ideal of equal citizenship. Finally, the Article contends that an existing doctrinal constraint on the retaliation claim, the reasonable belief requirement, undermines the potentially progressive role that the retaliation claim can play in realizing its promise for discrimination law. The Article urges a reconsideration of this doctrine to bring the retaliation claim closer to the theory advanced here.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association. The Court overturned the D.C. [...]