Suzanne B. Goldberg

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Discrimination by Comparison

120 Yale L.J. 728 (2011).  Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary’s dependence on comparators—those who are like a discrimination claimant but for the protected characteristic—as a favored heuristic for observing discrimination. The profound mismatch of the comparator methodology with current understandings of identity discrimination and the realities...