Issues in Legal Scholarship

The Origins and Fate of Antisubordination Theory

Inaugurated August 2002

Introduction

More than a quarter century ago, Owen Fiss published his classic article, 5 Phil. & Pub. Affairs 107 (1976). The article proposed to shift the focus of Equal Protection doctrine away from racial classifications and towards the social practices that disadvantaged racial groups. The article sparked the development of the numerous antisubordination theories that now characterize Equal Protection Scholarship. These theories stand in opposition to the antidiscrimination emphasis that has remained at the heart of Equal Protection law.

The editors of Issues in Legal Scholarship believe that the time is now ripe for a reconsideration of Fiss's early and influential contribution. The last twenty-five years has witnessed the rise of multiculturalist ideals, which substantially undermine the bipolar, black/white universe that largely informed Fiss's understanding of anti-subordination principles. Anti-essentialism, which is in tension with Fiss's appeal to group identity, has become a standard academic perspective. The Supreme Court has explicitly rejected many of the methodological and substantive recommendations contained in Fiss's article. The question of whether and how constitutional rights ought to be lodged in the judicial or legislative branches of the government has become a lively subject of debate.

We have assembled a distinguished group of scholars to consider these and other issues. The symposium will be published in two parts. The first part features articles by Lawrence A. Alexander, Michael C. Dorf, Roberto Gargarella, Kenneth Karst, Sanford Levinson, Mari J. Matsuda, Mark Tushnet, Robin West, and Iris Marion Young. The second part features articles by Kathryn Abrams, Jack Balkin, Richard Ford, Samuel Issacharoff, Pamela S. Karlan, Christopher Kutz, Daniel Sabbagh, Peter Schuck, Reva Siegel, Rogers Smith, David Strauss, and Susan Sturm. Part III begins with a response by Owen Fiss.

- ROBERT POST