VOLUME 112 FIRST IMPRESSIONS
COMMENTARIES

Transforming Juvenile Justice: Making Doctrine Out of Dicta in Graham v. Florida

Jason Zolle

In the late 1980s and 1990s, many state legislatures radically altered the way that their laws treated children accused of crimes. Responding to what was perceived of as an epidemic of juvenile violence, academics and policymakers began to think of child criminals as a "new breed" of incorrigible "superpredators." States responded by making it easier for prosecutors to try and sentence juveniles as adults, even making it mandatory in some circumstances.

Yet in the past decade, the Supreme Court handed down four opinions that limit the states' ability to treat children as adults in the justice system. Roper v. Simmons banned the death penalty for children under eighteen, overruling Stanford v. KentuckyGraham v. Florida prohibited life without parole ("LWOP") sentences for children under eighteen convicted of non-homicide crimes. J.D.B. v. North Carolina held that a child's age properly factors into the "reasonable person" analysis in determining whether a police officer must give a Miranda warning. And Miller v. Alabama "combined" Roper and Graham to prohibit mandatory LWOP sentences for children under eighteen.

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Are Cryptocurrencies Super Tax Havens?

Omri Marian
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One Redeeming Quality About the 112th Congress: Refocusing on Descriptive Rather than Evocative Short Titles - Part Two

Brian Christopher Jones
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The Pastor, The Burning House, and The Double Jeopardy Clause: The True Story Behind Evans v. Michigan

David A. Moran
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Reflections on the End of the Federal Law Clerk Hiring Plan

Aaron L. Nielson
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One Redeeming Quality About the 112th Congress: Refocusing on Descriptive Rather than Evocative Short Titles - Part One

Brian Christopher Jones
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Friendship Treaties ≠ Judgment Treaties

John F. Coyle
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Introduction by the Editors

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Let's Get Married: An Essay in Honor of Mari Matsuda

Richard Delgado
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Tribal Disruption and Indian Claims

Matthew L.M. Fletcher, Kathryn E. Fort, and Dr. Nicholas J. Reo
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Power Games

Aneil Kovvali
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Judicial Diversity After Shelby County v. Holder

William Roth
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Toward A Multiple Consciousness of Language: A Tribute to Professor Mari Matsuda

Shannon Gilreath
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Globally Speaking—Honoring the Victims' Stories: Matsuda's Human Rights Praxis

Berta Esperanza Hernández-Truyol
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Aftermarketfailure: Windows XP's End of Support

Andrew Tutt
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Cultivating Inclusion

Patrick S. Shin & Mitu Gulati
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The Tools of Political Dissent: A First Amendment Guide to Gun Registries

Thomas E. Kadri
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Lost in Translation: The Accidental Origins of Bond v. United States

Kevin L. Cope
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The Ninth Circuit's Treatment of Sexual Orientation: Defining “Rational Basis Review with Bite”

Ian Bartrum
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A Solution to Michigan's Child Shackling Problem

Gabe Newland
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RESPONSES

What Does Social Equality Require of Employers? A Response to Professor Bagenstos

Brishen Rogers

Individual employment law can appear a bit like tort law did in the late nineteenth century: an "eclectic gallery of wrongs" united largely by the fact that they do not fit into another doctrinal category. The field has emerged interstitially and today includes an array of state and federal common law and statutory claims not covered by labor law or employment discrimination law. These other subfieldshave foundational statutes: the National Labor Relations Act of 1935 and Title VII of the Civil Rights Act of 1964, respectively. Each was passed in response to a major social conflict, and each defines some jurisdictional boundaries. Given its decentralized origins, can individual employment law even have a normative core?

Yes it can, or so argues Professor Samuel Bagenstos. Just as tort theorists have long sought to render the field coherent by mapping principles at work across categories of tort cases, Bagenstos identifies a rough order within this apparent doctrinal mishmash. Individual employment law, he argues, characteristically "seeks to ensure that hierarchies of work do not harden into class-type hierarchies of person" or into more widespread relationships of "domination and subordination." This ideal of "social equality" renders certain doctrines coherent and explains longstanding critiques of other doctrines, and it does so better than theories based on ensuring efficiency or rectifying unequal bargaining power. Bagenstos also roots this argument in first principles of social justice, demonstrating an overlapping consensus among major strands of contemporary political theory to the effect that a just society will eliminate persistent hierarchies of status.

I strongly agree with this argument. I also believe that Bagenstos's article helps answer a vexing question within employment law: When are employer duties justified even if they reduce efficiency and do not target immoral behavior by employers? But I would emphasize different aspects of social equality in certain instances, and I am not optimistic that social egalitarian ideals will strongly influence courts in the run of cases. In this brief Essay, I take up these matters in turn.

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