The Rhetorical Situation of Law, and the Situation of Rhetoric

Theresa Beiner recently posted her article, “Shift Happens: The U.S. Supreme Court’s Shifting Antidiscrimination Rhetoric” (forthcoming in University of Toledo Law Review) on SSRN.  Here’s the abstract.

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The United States Supreme Court’s discourse on discrimination affects how fundamental civil rights – such as the right to be free from gender and race discrimination – are adjudicated and conceptualized in this country. Shortly after Congress passed Title VII of the Civil Rights Act of 1964, the Court established precedent that assumed discrimination, absent some other compelling explanation for employer conduct. While the Court was more reluctant to presume such discrimination by governmental actors, it was deferent to Congress’s ability to set standards that would presume discrimination. Over time, however, that presumption and the Court’s deference to Congress has dissipated, and today, the Court actually presumes non-discrimination, absent some evidence that shows an employer or governmental actor was intentionally discriminating. This article will describe the shift in the Supreme Court’s rhetoric over time, with an eye toward trying to understand why this shift has occurred and what the implications of this shift are for those who have suffered discrimination and wish to pursue their rights in court. In addition, this article will consider non-legal sources to determine whether such a shift is warranted by a decrease in race and gender discrimination in American society.

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Download the paper for free here.

Related Situationist posts:

• Responding to Subtle Racial Harassment
• “What Are the Legal Implications of Implicit Biases?,”
• “Confronting the Backlash against Implicit Bias,”
• “The Situation of Situation in Employment Discrimination Law – Abstract.”
• Patrick Shin at Harvard Law School
• Liability for Unconscious Discrimination?
• Tolerating Hostility in the Workplace
• “Women’s Situational Bind,”
• “Brenda Cossman on the Situation of Women in the Workplace,” and
• “The Situation of Situation in Employment Discrimination Law – Abstract.”