Abstract

In this article, I criticize Owen Fiss's "Groups and the Equal Protection Clause" on three bases. First, I argue that there is no attractive moral view available to underpin Fiss’s focus on groups. Second, I argue that the groups and their power and well-being that Fiss wants to make central to equal protection jurisprudence cannot be defined in any principled way by courts. And third, I argue that Fiss's candidate for the Equal Protection Clause's "mediating principle" is much more farreaching and radical than Fiss supposed due to the ubiquity of state action that Fiss himself recognized. Although Fiss made some trenchant criticisms of the then (and now) reigning mediating principle of antidiscrimination, his alternative of Griggsifying equal protection is nightmarish in its implications. Indeed, Griggs itself, taken to its logical limits, is equally unappealing.

Recommended Citation

Lawrence A. Alexander, "Equal Protection and the Irrelevance of "Groups"" Issues in Legal Scholarship, The Origins and Fate of Antisubordination Theory (2002): Article 1.
http://www.bepress.com/ils/iss2/art1