Susan P. Sturm

Law’s Role in Addressing Complex Discrimination

This essay demonstrates the importance of making explicit and critically assessing assumptions about judicial role that run through antidiscrimination scholarship. A formalistic conception of the judiciary operates as an uninterrogated baseline even for scholars who employ an institutional and cultural analysis of the problems law and courts address. The rule-enforcement conception of law and courts is, however, vastly over-simplified, as both a descriptive and normative matter. Its formalism clashes with the rich, interdisciplinary, and structural analyses that characterize scholars’ critique of formal equality doctrine. This essay sketches the outlines of an under-acknowledged but widely practiced and legitimate judicial role: facilitating the elaboration and implementation of public law norms. Legal norms develop not only through liability determinations, but also through legally structured occasions for deliberating about the relationship between norms and practice. Within the context of judicial decision making, norm elaboration occurs in less formal settings that more directly facilitate data gathering and deliberations by relevant stakeholders and experts. These processes generate learning and outcomes that are more generally applicable, even if they have less formally binding effect than a formal adjudication. This analysis cast courts in a crucial but limited role in addressing problems that implicate public norms but are insufficiently understood or resistant to centralized rule enforcement. They emphasize law’s role in structuring focal points of normative activity within and across institutions. This role, as an important concomitant of the court’s more traditional rule elaboration and enforcement function, enables the judiciary to participate in addressing complex patterns of interaction that produce group-based exclusion without compromising its legitimacy or overstepping its capacity. It would also highlight and create accountability for the many occasions beyond formal liability adjudication in which courts prompt elaboration of equality norms under conditions of uncertainty.