Con Law Center Articles and Publications

Document Type

Article

Publication Date

2019

Abstract

The U.S. Supreme Court recently revived its jurisprudence of “leveling down,” that is, curing an equal protection violation of gender discrimination by denying the requested benefit to all rather than extending the benefit to the excluded class. This article challenges the continuation of the conventional acceptance of leveling down as an equally legitimate remedial option for gender discrimination. Instead, it argues for the adoption of an alternative remedial calculus of a strong presumption of leveling up remedies, overcome only by limited equitable considerations. Such a presumption better effectuates the substantive right of gender equality, as well as the correlative due process right to a meaningful remedy.

Publication Title

Harvard Journal of Law & Gender

Volume

42

First Page

177

Last Page

218

Download

Share

COinS