essay about civil law

Faculty Scholarship

The myths and reality of common and civil law.

What are the real differences between common and civil law systems? Probably not the ones lawyers typically think about, said Harvard Law School Professor Holger Spamann S.J.D. ’09 last week. To commemorate his appointment as Lawrence R. Grove Professor of Law, Spamann examined the myths and reality of common and civil law, the two most widely used legal systems in the world.

Those myths include the widespread idea that common law — rooted in England and also practiced in the United States — involves precedent, or deference to previously published judicial opinion, while civil law, practiced in much of Europe and elsewhere in the world, does not.

As a lighthearted way to show how reasonable but mistaken assumptions lead to myths, Spamann displayed a now-famous photo of England’s new monarch King Charles III sitting on a throne of gold. Adding that many who see it believe the photo is from the king’s coronation, Spamann said it had in fact been taken several months before Queen Elizabeth’s death. “The actual throne that he sat on [for coronation] looked more like a pompous living room chair. But people just imagine that there has to be a fancy throne, so they believe this. I would say that common and civil law myths arise the same way.”

He defined common and civil law as legal systems of, or influenced by, England and continental Europe respectively. The latter’s center of gravity moved over time from Italy to France and Germany. England began to centralize its courts by the late 11th century, but was never completely isolated from European influence. Likewise, European courts were influenced by England — and by extension precedent, said Spamann, noting: the frequent citing of the English case Hadley v. Baxendale (1854) in common law countries around the world, and their adopting of English legal terminology and even the wearing of wigs.

“Expert comparatives haven’t believed” that civil law excludes the use of precedent “for a very long time,” said Spamann. “Nonetheless, half the published articles that mention precedent in connection with civil law, assert that civil law doesn’t have it.” It is easy to dispel that myth, he said, displaying a photo of Grüneberg, a German commentary on the German civil code. “It has three thousand pages and weighs a hefty five pounds. And what’s in it? Mostly precedents.”

Another mistaken idea is that Article Five of the French civil code prohibits judicial precedent — yet the article, Spamann pointed out, is itself annotated with precedents in the standard French edition of its civil code. He also referenced a quote from John P. Dawson’s seminal book “Oracles of the Law,” which states that the same respect for precedent exists in U.S. and German law. And as further confirmation, Spamann cited his own research, which showed that German courts overruled precedents about as frequently as English ones, and that both cited previous cases nearly as often.

And what of the belief among some that common law systems allow for the flexible interpretation of facts, while civil law is rule-based and rigid? Spamann cited the landmark English company law decision of Salomon v. Salomon (1896) — which stated that “the sole guide must be the statute itself”— as evidence that English law could also be unbending.

Spamann acknowledged that it would be just as easy to find cases that supported the conventional wisdom — the reality, he said, is never that clear cut. He pointed to Jand’heur v. Aux Galeries Belfortaises (1930), a consequential case that ushered in strict liability for vehicle accidents in France. Yet despite its import, the opinion itself is just three dense, cryptic sentences long. However, “it’s absolutely clear that the judges who decided this case were thinking about much more than they wrote,” he said.

All of this, Spamann said, should not imply that both legal systems are the same. “I’m not saying that there are less differences than the common/civil law myth suggests. But I think there are different differences.”

A major one is the appointment of judges: Under common law, judges are usually appointed after successful legal careers, while civil law jurisdictions tend to appoint graduates straight out of university. This, he said, can affect a judge’s worldview. If you’re an English judge who’s been a barrister, you are likely also a homeowner or an employer. But a young French judge may only have been a tenant and an employee. “I can’t help thinking that has an impact on how you relate to consumer, landlord/tenant, and employment law disputes.”

Another big difference is about who goes to law school. The United States, he said, is a “complete outlier” in that it was until recently the only country where law school entailed a graduate education. And in the U.S., Spamann added, law school is considered a more desirable career than in some European countries, which leads to “different systems and a different self-image.”

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111 Civil Law Essay Topic Ideas & Examples

Inside This Article

Civil law is a vast and complex area of legal study that deals with private disputes between individuals or organizations. It encompasses a wide range of topics, including torts, contracts, property, family law, and more. If you're looking for inspiration for your next civil law essay, here are 111 topic ideas and examples to consider:

• The evolution of civil law in different legal systems.
• Comparative analysis of civil law and common law systems.
• The role of civil law in protecting individual rights and liberties.
• The significance of civil law in modern society.
• Exploring the principles of civil liability.
• The concept of negligence in civil law.
• Analyzing the elements of a valid contract.
• The legal consequences of breaching a contract.
• The role of civil law in regulating business transactions.
• The impact of civil law on consumer protection.
• Exploring the legal remedies available in civil law cases.
• The concept of causation in civil law.
• Analyzing the concept of duty of care in tort law.
• The role of civil law in addressing medical malpractice.
• Exploring the legal implications of defamation in civil law.
• The impact of civil law on intellectual property rights.
• Analyzing the legal requirements for establishing a trust.
• The concept of property rights in civil law.
• The role of civil law in regulating landlord-tenant relationships.
• Exploring the legal framework for family law matters.
• The impact of civil law on child custody disputes.
• Analyzing the legal requirements for divorce in civil law.
• The concept of alimony in civil law.
• Exploring the legal implications of domestic violence in civil law.
• The role of civil law in addressing discrimination issues.
• The impact of civil law on employment contracts.
• Analyzing the legal framework for workplace harassment cases.
• The concept of wrongful termination in civil law.
• Exploring the legal requirements for filing a personal injury lawsuit.
• The role of civil law in addressing product liability issues.
• The impact of civil law on environmental protection.
• Analyzing the legal implications of construction defects in civil law.
• The concept of professional negligence in civil law.
• Exploring the legal framework for class action lawsuits.
• The role of civil law in regulating privacy rights.
• The impact of civil law on cybersecurity issues.
• Analyzing the legal implications of data breaches in civil law.
• The concept of intellectual property infringement in civil law.
• Exploring the legal framework for international civil law cases.
• The role of civil law in addressing human rights violations.
• The impact of civil law on immigration issues.
• Analyzing the legal implications of refugee rights in civil law.
• The concept of state responsibility in civil law.
• Exploring the legal framework for war crimes in civil law.
• The role of civil law in regulating international trade.
• The impact of civil law on cross-border disputes.
• Analyzing the legal implications of international investment disputes in civil law.
• The concept of diplomatic immunity in civil law.
• Exploring the legal framework for extradition in civil law.
• The role of civil law in addressing maritime disputes.
• The impact of civil law on aviation accidents.
• Analyzing the legal implications of space law in civil law.
• The concept of cultural property rights in civil law.
• Exploring the legal framework for animal rights in civil law.
• The role of civil law in regulating art transactions.
• The impact of civil law on sports law issues.
• Analyzing the legal implications of doping in civil law.
• The concept of copyright infringement in civil law.
• Exploring the legal framework for music piracy in civil law.
• The role of civil law in addressing cyberbullying issues.
• The impact of civil law on social media defamation.
• Analyzing the legal implications of revenge pornography in civil law.
• The concept of privacy rights in civil law.
• Exploring the legal framework for genetic privacy in civil law.
• The role of civil law in regulating assisted reproductive technologies.
• The impact of civil law on surrogate motherhood issues.
• Analyzing the legal implications of adoption in civil law.
• The concept of same-sex marriage in civil law.
• Exploring the legal framework for LGBTQ+ rights in civil law.
• The role of civil law in addressing gender discrimination.
• The impact of civil law on reproductive rights issues.
• Analyzing the legal implications of reproductive technologies in civil law.
• The concept of abortion rights in civil law.
• Exploring the legal framework for child custody in civil law.
• The role of civil law in addressing child abuse cases.
• The impact of civil law on child support issues.
• Analyzing the legal implications of child trafficking in civil law.
• The concept of parental rights in civil law.
• Exploring the legal framework for surrogate parenting in civil law.
• The role of civil law in addressing elder abuse cases.
• The impact of civil law on inheritance rights.
• Analyzing the legal implications of wills and trusts in civil law.
• The concept of guardianship in civil law.
• Exploring the legal framework for mental health law in civil law.
• The role of civil law in addressing addiction issues.
• The impact of civil law on involuntary commitment cases.
• Analyzing the legal implications of medical decision-making in civil law.
• The concept of patient rights in civil law.
• Exploring the legal framework for organ transplantation in civil law.
• The role of civil law in addressing end-of-life issues.
• The impact of civil law on euthanasia and assisted suicide.
• Analyzing the legal implications of medical research ethics in civil law.
• The concept of human experimentation in civil law.
• Exploring the legal framework for mental capacity in civil law.
• The role of civil law in addressing disability rights.
• The impact of civil law on accessibility issues.
• Analyzing the legal implications of discrimination against people with disabilities in civil law.
• The concept of inclusive education in civil law.
• Exploring the legal framework for employment discrimination in civil law.
• The role of civil law in addressing workplace harassment cases.
• The impact of civil law on wage and hour disputes.
• Analyzing the legal implications of workplace safety in civil law.
• The concept of workers' compensation in civil law.
• Exploring the legal framework for labor union rights in civil law.
• The role of civil law in addressing wrongful termination cases.
• The impact of civil law on workplace discrimination issues.
• Analyzing the legal implications of sexual harassment in civil law.
• The concept of workplace privacy in civil law.
• Exploring the legal framework for whistleblowing in civil law.
• The role of civil law in addressing intellectual property theft.
• The impact of civil law on trade secret protection.

These essay topics and examples provide a starting point for your exploration of civil law. Remember to narrow down your focus, conduct thorough research, and present a well-structured argument in your essay. Good luck!

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Definition of Civil Law

What is civil law, civil law vs. criminal law, branches of civil law, contract law, property law, civil case example, liebeck v. mcdonald’s restaurants cv-93-02419, 1995 (n.m. dist., aug. 18, 1994), related terms.

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What Is the Difference Between Criminal Law and Civil Law?

In the United States, there are two bodies of law whose purpose is to deter or punish serious wrongdoing or to compensate the victims of such wrongdoing. Criminal law deals with behavior that is or can be construed as an offense against the public, society, or the state—even if the immediate victim is an individual. Examples are murder, assault, theft,and drunken driving. Civil law deals with behavior that constitutes an injury to an individual or other private party, such as a corporation. Examples are defamation (including libel and slander), breach of contract, negligence resulting in injury or death, and property damage.

Criminal law and civil law differ with respect to how cases are initiated (who may bring charges or file suit), how cases are decided (by a judge or a jury), what kinds of punishment or penalty may be imposed, what standards of proof must be met, and what legal protections may be available to the defendant.

In criminal cases, for example, only the federal or a state government (the prosecution) may initiate a case; cases are almost always decided by a jury; punishment for serious (felony) charges often consists of imprisonment but may also include a fine paid to the government; to secure conviction, the prosecution must establish the guilt of the defendant "beyond a reasonable doubt"; and defendants are protected against conduct by police or prosecutors that violates their constitutional rights, including the right against unreasonable searches and seizures (Fourth Amendment) and the right against compelled self-incrimination (Fifth Amendment).

In civil cases, by contrast, cases are initiated (suits are filed) by a private party (the plaintiff); cases are usually decided by a judge (though significant cases may involve juries); punishment almost always consists of a monetary award and never consists of imprisonment; to prevail, the plaintiff must establish the defendant's liability only according to the "preponderance of evidence"; and defendants are not entitled to the same legal protections as are the criminally accused.

Importantly, because a single wrongful act may constitute both a public offense and a private injury, it may give rise to both criminal and civil charges. A widely cited example is that of the former American football player O.J. Simpson: in 1995 he was acquitted of having murdered his wife and her friend, but two years later he was found liable for their killings in a civil suit for wrongful death.

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Civil Law Essay Titles

• Adversarial System Vs. Civil Law: A Comparison Analysis
• The Origins of American Civil Law: Implications For State Constitutions
• The Civil Law Code of the Ancient Greeks
• Can Civil Law Countries Develop Strong Institutions?
• Civil Law and Canon Law Perspectives on Abortion
• European Sociology: Civil Law and Common Law
• A Comparison of Common Law and Civil Law Countries’ Effectiveness
• Countries With Civil Law and Their Criminal Justice Systems
• Overview of the Common and Civil Law Legal Systems
• Civil Law As A Basis For Legal and Ethical Principles
• Common and Civil Law As Market-Friendly Adaptations
• Civil Law Remedies For Competition Law Violations
• Considerations Regarding the Characteristics of Potestative Rights Under Romanian Civil Law
• Civil Law Vs. Criminal Law: Social Roles
• Criminal and Civil Law In Indonesia and the United States: A Comparison
• Civil Vs. Customary Law In Old Regime France
• The English Legal System’s Criminal and Civil Law
• The Distinction between English Civil Law and Common Law
• Criminal Vs. Civil Law In Medical Practice
• What Is the Difference between Civil Law and Criminal Procedure?

Essay Topics On Civil Law

• Do Civil Law Tradition and Universal Banking Displace Securities Markets?
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• The Civil Law System’s Historical and Cultural Roots
• How Civil Law Protects Against Bullying
• Significant Differences between Common Law and Civil Law
• Comparison of Common Law and Civil Law Countries
• Asian Civil Law Jurisdictions’ Trust Law
• Sophocles’ Antigone: Moral Law Vs. Civil Law
• The Best Copyright Protection: Civil Vs. Criminal Law
• Civil Law and Catholic Teachings on Pornography
• What Is A Contract In Australian Law Under Civil and Private Law?
• Reforming A Person’s Civil Status In Romanian Civil Law
• Similarities between Mosaic Law and Criminal and Civil Law
• How the Civil Law and Social Rights Systems Work
• The Australian Legal System, Civil Law, and Criminal Justice Differences
• Limitations of Property Rights Under Civil Law
• The United States of America’s Civil Law System
• The Conflict between Civil and Divine Law

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Civil Law vs. Common Law

Legal systems around the world vary greatly, but they usually follow civil law or common law . In common law, past legal precedents or judicial rulings are used to decide cases at hand. Under civil law, codified statutes and ordinances rule the land. Some countries like South Africa use a combination of civil and common law.

Comparison chart

Historians believe that the Romans developed civil law around 600 C.E., when the emperor Justinian began compiling legal codes. Current civil law codes developed around that Justinian tradition of codifying laws as opposed to legal rulings.

Common law dates to early English monarchy when courts began collecting and publishing legal decisions. Later, those published decisions were used as the basis to decide similar cases.

Modern Common and Civil Law Systems

Today the difference between common and civil legal tenets lies in the actual source of law. Common-law systems make refer extensively to statutes, but judicial cases are considered the most important source of law, allowing judges to pro-actively contribute to rules. For example, the elements needed to prove the crime of murder are contained in case law rather than defined by statute. For consistency, courts abide by precedents set by higher courts examining the same issue.

In civil-law systems on the other hand, codes and statutes are designed to cover all eventualities and judges have a more limited role of applying the law to the case in hand. Past judgments are no more than loose guides. When it comes to court cases, judges in civil-law systems are more like investigators, while their equivalents in the common-law systems are rather arbiters between parties presenting arguments.

Below is a discussion on civil vs common law systems:

Countries following Civil or Common Law

The United States , Canada, England , India , and Australia are generally considered common law countries . Because they were all once subjects or colonies of Great Britain , they have often retained the tradition of common law. The state of Louisiana in the United States uses bijuridicial civil law because it was once a colony of France.

Civil law countries include all of South America (except Guyana), almost all of Europe (including Germany, France, and Spain), China, and Japan.

South Africa, Namibia, Botswana, and Zimbabwe are bijuridical, i.e., they follow a combination of both legal systems.

Legal representation

In both civil and common law countries, lawyers and judges play an important role.

However, in civil law countries, the judge is usually the main investigator, and the lawyer's role is to advise a client on legal proceedings, write legal pleadings, and help provide favorable evidence to the investigative judge.

In common law, the judge often acts as a referee, as two lawyers argue their side of the case. Generally, the judge, and sometimes a jury, listen to both sides to come to a conclusion about the case.

Constitutions

Though not a rule, common law countries may not always follow a constitution or a code of laws.

In civil law, the constitution is generally based on a code of laws, or codes applying to specific areas, like tax law, corporate law, or administrative law.

Freedom of contract is very extensive in common law countries, i.e., very little or no provisions are implied in contracts by law. Civil law countries on the other hand have a more sophisticated model for contract with provisions based in the law.

The decisions of judges are always binding in common law countries, althought that does not mean the decision may not be appealed. In the United States, for example, cases may be heard by a network of federal or state courts , with the federal Supreme Court holding ultimate power. Generally, the ruling of the last court that a case visits remains the final, binding verdict. That case may later be used as precedent to argue similar cases in the future.

In civil law countries, only the judicial decisions of administrative and constitutional courts are binding outside the original case. In essence, the concept of precedent, i.e. past cases can determine the outcome of future ones, is not used.

American vs. British Common Law

Because it began as a colony of England, the United States inherited many traditions of British common law, including habeas corpus and jury trials. After the American Revolutionary War , one of the first acts of the new government was to adopt existing English common law in full, unless it contradicted the U.S. Constitution.

However, in 1938, the U.S. Supreme Court ruled that there will be “no general common law.” So, from that year forward, federal courts deciding issues that originated in states had to look to the state judicial interpretations of those matters.

The 1938 decision was later amended so that the federal government could develop a common law based on uniquely federal interests, such as war, foreign policy, taxation, etc.

Common law is a peculiar to England in its origin. Until the Norman conquest, there were different rules for different regions of the country. But as the laws and the country began to unite, a common law was created based on customs and rulings across the country. These rules developed organically and were rarely written down.

European rulers on the other hand ruled on Roman law, and a compilation of rules issued by the emperor Justinian in the 6th century that was rediscovered in 11th-century Italy. With the Enlightenment of the 18th century, rulers from different continental countries took to comprehensive legal codes.

• What is the Civil Law? - LSU Law Center
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• Wikipedia: Common_law#United States federal system (1789 and 1938)
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Protecting Civil Rights in the Shadows

Beyond grand constitutional moments such as the New Deal and the civil rights era, the American people also remove other, less prominent issues from majoritarian politics. This process of petit popular constitutionalism resolves numerous important issues of government …

Universalism and Civil Rights (with Notes on Voting Rights After Shelby )

After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They ins…

Separate Spheres

This essay is about the mixed legacy, or incomplete achievement, of the landmark legal changes of the Second Reconstruction. This mixed legacy is one of the central themes of The Civil Rights Revolution, the third volume of Bruce Ackerman’s We the…

Ackerman’s Civil Rights Revolution and Modern American Racial Politics

Bruce Ackerman’s The Civil Rights Revolution makes a signal contribution by documenting how the major civil rights statutes of the 1960s, especially the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1968 Fair Housing Act, pragmatically …

Rethinking Rights After the Second Reconstruction

The Civil Rights Act was remarkably successful in fighting overt bigotry and discrimination, but much less so in combating the subtler, institutionalized disadvantages that are now the main sources of social injustice. The heroic idea of rights as protecti…

A Revolution at War with Itself? Preserving Employment Preferences from Weber to Ricci

Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a co…

Have We Moved Beyond the Civil Rights Revolution?

Bruce Ackerman’s account of the Civil Rights Revolution stresses the importance of popular sovereignty and the separation of powers as the basis of constitutional significance. In this view, key spokespersons, including Martin Luther King, Jr. and Ly…

Equal Protection in the Key of Respect

This essay challenges the three related claims embedded within Professor Ackerman’s assertion that the distinctive wisdom of Chief Justice Warren’s opinion in Brown v. Board of Education lies in its recognition of segregation as institutionalized humiliation. Ack…

Ackerman’s Brown

This essay contends that, despite its revisionist ethos, Professor Ackerman’s We the People: The Civil Rights Revolution is conventional in its assessment of Brown v. Board of Education. Ackerman praises Brown as “the greatest judicial opinion of the twentieth cen…

The Anti-Humiliation Principle and Same-Sex Marriage

Bruce Ackerman’s volume on the civil rights revolution argues that the Second Reconstruction was centrally concerned with the concept of institutionalized humiliation. Ackerman inveighs against the fact that we have turned away from this “anti-humiliat…

De-Schooling Constitutional Law

For more than two centuries, constitutional law has been created by a dialogue between generations. As newcomers displace their predecessors, they begin to challenge parts of the legacy they have inherited while cherishing other elements of their tradition. The…

Five to Four: Why Do Bare Majorities Rule on Courts?

Interrogating a commonsense assumption

Federalism as the New Nationalism: An Overview

Federalism has had a resurgence of late, with symposia organized,1 stories written,2 and new scholarly paths charted. Now is an appropriate moment to assess where the new “new federalism”3 is heading. This Feature thus brings together five scholars who have made unique contribution…

From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to aband…

The Loyal Opposition

The term loyal opposition is not often used in American debates because (we think) we lack an institutional structure for allowing minorities to take part in governance. On this view, we’ve found our own way to build loyalty while licensing opposition, but it’s been a rights-…

Our [National] Federalism

“National Federalism” best describes the modern allocation of state and federal power, but it is a federalism without doctrine. Federalism today comes primarily from Congress—through its decisions to give states prominent roles in federal schemes and so to ensure the stat…

The Shadow Powers of Article I

This essay argues that the interpretive struggle over the meaning of American federalism has recently shifted from the Commerce Clause to two textually marginal but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser extent, the General Welfa…

Negotiating Conflict Through Federalism: Institutional and Popular Perspectives

The contours of our federal system are under constant negotiation, as governments construct the scope of one another’s interests and powers while pursuing their agendas. For our institutions to manage these dynamics productively, we must understand the value the system is capab…

The Moral Impact Theory of Law

I develop an alternative to the two main views of law that have dominated legal thought. My view offers a novel account of how the actions of legal institutions make the law what it is, and a correspondingly novel account of how to interpret legal texts. According to my view, legal obl…

Pretrial Detention and the Right to Be Monitored

Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. This Essay develops two rel…

Reconsidering Citizens United as a Press Clause Case

The central flaw in the analysis of Citizens United by both the majority and the dissent was to treat it as a free speech case rather than a free press case. The right of a group to write and disseminate a documentary film criticizing a candidate for public office falls within the core…

Tops, Bottoms, and Versatiles: What Straight Views of Penetrative Preferences Could Mean for Sexuality Claims Under Price Waterhouse

This Essay reports the results of a survey experiment that we conducted on over eight hundred heterosexual respondents to compare associational attitudes toward gay men who engage in different types of sexual practices. Specifically, we randomly assigned respondents to hear one…

The Unbundled Union: Politics Without Collective Bargaining

Why civil gideon won’t fix family law.

This Essay explains why we should hesitate before throwing full support behind a civil Gideon initiative for family law, regardless of how wholeheartedly we embrace the proposition that parental rights are as important as physical liberty. The comparable importance of these interests does not necess…

Gideon Exceptionalism?

122 Yale L.J. 2126 (2013). There is no doubt that Gideon v. Wainwright is extraordinary, but in thinking about its uniqueness, we are reminded of “American exceptionalism” and the diametrically opposed meanings that advocates have ascribed to the phrase. Gideon too is exceptional, in both the laudato…

Fifty Years of Defiance and Resistance After Gideon v. Wainwright

122 Yale L.J. 2150 (2013). In its 1963 ruling Gideon v. Wainwright , the Supreme Court declared the right to a lawyer “fundamental and essential” to fairness in the criminal courts and held that lawyers must be provided for people who could not afford them so that every person “stands equal before the…

Poor People Lose: Gideon and the Critique of Rights

122 Yale L.J. 2176 (2013). A low income person is more likely to be prosecuted and imprisoned post- Gideon than pre- Gideon . Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The crit…

Celebrating the “Null” Finding: Evidence-Based Strategies for Improving Access to Legal Services

122 Yale L.J. 2206 (2013). Recent empirical studies tested whether litigants with access to lawyers fared better than litigants with access only to advice or limited assistance. Two of the three studies produced null findings—the litigants with access to lawyers, the treatment group, fared no better …

Race and the Disappointing Right to Counsel

122 Yale L.J. 2236 (2013). Critics of the criminal justice system observe that the promise of Gideon v. Wainwright remains unfulfilled. They decry both the inadequate quality of representation available to indigent defendants and the racially disproportionate outcome of the criminal process. Some hop…

Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law

122 Yale L.J. 2260 (2013). Domestic efforts to establish a right to civil counsel by drawing narrow analogies to Gideon v. Wainwright have met with limited success. In contrast, two principles drawn from international jurisprudence—the human right to “civic participation” and the concept of “equality…

Gideon’s Migration

122 Yale L.J. 2282 (2013). For the past fifty years, immigration law has resisted integration of Gideon v. Wainwright ’s legacy of appointed counsel for the poor. Today, however, this resistance has given way to Gideon ’s migration. At the level of everyday practice, criminal defense attorneys appointe…

Searching for Solutions to the Indigent Defense Crisis in the Broader Criminal Justice Reform Agenda

122 Yale L.J. 2316 (2013). As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same t…

Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?

122 Yale L.J. 2336 (2013). In Gideon v. Wainwright , twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in…

Valuing Gideon’s Gold: How Much Justice Can We Afford?

122 Yale L.J. 2358 (2013). In this Essay, we explore Gideon ’s impact in our community, El Paso, Texas, which has the will to try to meet Gideon ’s challenge, but lacks the resources to deliver fully Gideon ’s promise. We look at the origins of our community’s indigent defense reform and examine our off…

Investigating Gideon’s Legacy in the U.S. Courts of Appeals

122 Yale L.J. 2376 (2013). This Essay investigates the legacy of Gideon by examining the de facto courts of last resort for convicted offenders: the federal courts of appeals. Part I focuses on the U.S. courts of appeals’ judges and caseloads, revealing that very few federal appellate judges have pri…

An Immigration Gideon for Lawful Permanent Residents

122 Yale L.J. 2394 (2013). In evaluating the legacy of Gideon v. Wainwright , it is critical to remember that the Supreme Court’s decision rested on the Sixth Amendment right to counsel for the accused in criminal cases. American law sharply demarcates between the many rights available to criminal def…

Gideon at Guantánamo

122 Yale L.J. 2416 (2013). The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether …

Enforcing Effective Assistance After Martinez

122 Yale L.J. 2428 (2013). This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent represen…

Gideon’s Law-Protective Function

122 Yale L.J. 2460 (2013). Gideon v. Wainwright dramatically affects the rights of indigent defendants by entitling them to representation. But Gideon has another systemic consequence as well. In addition to protecting the rights of individual defendants in particular trials, Gideon also protects the…

Gideon’s Shadow

122 Yale L.J. 2482 (2013). The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elabo…

Gideon at Guantánamo: Democratic and Despotic Detention

122 Yale L.J. 2504 (2013). One measure of Gideon v. Wainwright is that it made the U.S. government’s efforts to isolate 9/11 detainees from all outsiders at Guantánamo Bay conceptually and legally unsustainable. Gideon , along with Miranda v. Arizona , is part of a democratic narrative shaped over dec…

Fear of Adversariness: Using Gideon To Restrict Defendants’ Invocation of Adversary Procedures

122 Yale L.J. 2550 (2013). Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our …

Federal Public Defense in an Age of Inquisition

122 Yale L.J. 2578 (2013). This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided. It concludes that in many situations they do not; indeed, they often receive far worse. Although Gideon and the Criminal Justice Ac…

Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures

122 Yale L.J. 2604 (2013). Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life int…

Implicit Racial Bias in Public Defender Triage

122 Yale L.J. 2626 (2013). Despite the promise of Gideon , providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defend…

Effective Plea Bargaining Counsel

122 Yale L.J. 2650 (2013). Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men,…

The Continuum of Excludability and the Limits of Patents

122 Yale L.J. 1900 (2013). In IP scholarship, patents are commonly understood as more efficient than other approaches to innovation policy. Their primary ostensible advantage is allocative: as a form of property rights, patents act as a conduit between market signals and potential innovators, ostensi…

Spite and Extortion: A Jurisdictional Principle of Abuse of Property Right

122 Yale L.J. 1444 (2013). This Essay puts forward the conceptual and normative underpinnings of a principle of abuse of property right. Owners abuse their right, I argue, when their decisions about a thing are designed just to produce harm. This is so whether that harm is an end in itself (spite) or…

Reconceptualizing the Burden of Proof

122 Yale L.J. 1254 (2013). The preponderance standard is conventionally described as an absolute probability threshold of 0.5. This Essay argues that this absolute characterization of the burden of proof is wrong. Rather than focusing on an absolute threshold, the Essay reconceptualizes the preponder…

Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?

122 Yale L.J. 940 (2013). It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senat…

Asymmetries and Incentives in Plea Bargaining and Evidence Production

122 Yale L.J. 690 (2012). Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymm…

Contra Nemo Iudex in Sua Causa: The Limits of Impartiality

122 Yale L.J. 384 (2012).

Regularly invoked by the Supreme Court in diverse contexts, the maxim nemo iudex in sua causa —no man should be judge in his own case—is widely thought to capture a bedrock principle of natural justice and constitutionalism. I will argue that the nemo iudex principle is a m…

Judicial Capacity and the Substance of Constitutional Law

122 Yale L.J. 422 (2012). Courts can decide only a small fraction of constitutional issues generated by the American government. This is widely acknowledged. But why do courts have such limited capacity? And how does this limitation affect the substance of constitutional law? This Essay advances a tw…

How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes

122 Yale L.J. 154 (2012). One in five indigent murder defendants in Philadelphia is randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. We exploit this random assignment to measure how defense counsel affect murder case outcomes. Compare…

One in five indigent murder defendants in Philadelphia is randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. We exploit this random assignment to measure how defense counsel affect murder case outcomes. Comp…

The Antitrust/Consumer Protection Paradox: Two Policies at War with Each Other

121 Yale L.J. 2216 (2012) . The potential complementarities between antitrust and consumer protection law—collectively, “consumer law”—are well known. The rise of the newly established Consumer Financial Protection Bureau (CFPB) portends a deep rift in the intellectual infrastructure of consumer law …

Due Process as Separation of Powers

121 Yale L.J. 1672 (2012) . From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether t…

Income Tax Discrimination: Still Stuck in the Labyrinth of Impossibility

121 Yale L.J. 1118 (2012).

In previous articles, we have argued that the European Court of Justice’s reliance on nondiscrimination as the basis for its decisions did not (and could not) satisfy commonly accepted tax policy norms, such as fairness, administrability, economic efficiency, production o…

Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond

121 Yale L.J. 534 (2011).

State implementation of federal law is commonplace, but has been largely ignored by the interpretive doctrines of legislation and administrative law.  We have no Chevron , federalism canon, or anything else for state implementation, nor any doctrines that ask how Congress’s…

The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability

121 Yale L.J. 142 (2011). When a tort rule is fully aligned, harms are valued equally across the elements. Because the valuation of harm within duty equals the valuation within the damages remedy, a fully aligned rule gives dutyholders the option to fully comply with the duty with respect to any harm by…

Justifications, Power, and Authority

117 Yale L.J. 1070 (2008).

Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structu…

Irreparable Benefits

116 Yale L.J. 1284 (2007)

The conventional approach to preliminary relief focuses on irreparable harm but entirely neglects irreparable benefits. That is hard to understand. Errant irreversible harms are important because they distort incentives and have lasting distributional consequences. But the…

The Efficient Performance Hypothesis

116 Yale L.J. 568 (2006) Notable American jurists and scholars have advanced an approach to contract enforcement that would render breach legally and morally uncontestable, assuming compensation follows. Much of the justification for this endeavor has rested upon claims of judicial and economic effic…

Executive Branch Usurpation of Power: Corporations and Capital Markets

115 Yale L.J. 2416 (2006) Agencies in the executive branch are better situated than other political institutions to take advantage of opportunities to expand their power base by responding quickly and decisively to real or imagined crises. The executive has structural advantages over the other branch…

Beyond Marbury: The Executive's Power To Say What the Law Is

115 Yale L.J. 2580 (2006) Under Marbury v. Madison , it is "emphatically the province and duty of the judicial department to say what the law is." But in the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron, U.S.A., Inc. v. Natural R…

Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System

This Essay considers the historic weakness of the American mayoralty and recent reform efforts designed to strengthen it. I argue that the strong mayoralty is a potential instrument for democratic self-government to the extent that it is able to amass power on behalf of the city.

Rational War and Constitutional Design

115 Yale L.J. 2512 (2006) Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a comparative …

Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive

115 Yale L.J. 2446 (2006) Proponents of the unitary executive have contended that its adoption by the framers "swept plural executive forms into the ash bin of history." Virtually every state government, however, has a divided executive in which executive power is apportioned among different executiv…

Gubernatorial Foreign Policy

115 Yale L.J. 2380 (2006) In a variety of circumstances, state governors exercise independent decision-making power over matters affecting the foreign policy of the United States. This Essay describes and defends this emerging system of gubernatorial foreign policy on both legal and functional ground…

Setting the World Right

115 Yale L.J. 2350 (2006) Five years after September 11, 2001, America's response to that traumatic day has effectively turned the world of American public law upside down. Claiming that a global war on terror calls for an entirely new legal paradigm, the Bush Administration and its supporters have p…

The President's Completion Power

115 Yale L.J. 2280 (2006) This Essay identifies and analyzes the President's completion power: the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of congressional authorization to complete that scheme. The Essay shows tha…

Quasipublic Executives

115 Yale L.J. 2254 (2006) In this Essay, we first observe the rise of what we call "quasipublic executives": both "nominally private executives," that is, private executives in charge of public functions such as corrections, education, and national defense; and "nominally public executives," that is,…

Why (and When) Cities Have a Stake in Enforcing the Constitution

115 Yale L.J. 2218 (2006) This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco . The Essay argu…

Inherent Executive Power: A Comparative Perspective

115 Yale L.J. 2480 (2006) In light of recent debates regarding the scope and basis of inherent executive power, particularly with regard to foreign affairs and national security, this Essay examines different conceptions of executive power in five modern democracies. The Essay's study of British and …

Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within

115 Yale L.J. 2314 (2006) The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this Essay asks how separation of …

Absolute Priority, Valuation Uncertainty, and the Reorganization Bargain

115 Yale L.J. 1930 (2006) In a Chapter 11 reorganization, senior creditors can insist on being paid in full before anyone junior to them receives anything. In practice, however, departures from "absolute priority" treatment are commonplace. Explaining these deviations has been a central preoccupation…

Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access

115 Yale L.J. 996 (2006) According to conventional law-and-economics theory, private property rights tend to evolve as resource values rise. This optimistic assessment fails to explain the development of open access in many Third World property systems. Indeed, while the evolution of property has bee…

Of Property and Federalism

115 Yale L.J. 72 (2005) This Essay proposes a mechanism for expanding competition in state property law, while sketching out the limitations necessary to protect third parties. The fact that property law is produced by the states creates a unique opportunity for experimentation with such property and…

Democratic Disobedience

114 Yale L.J. 1897 (2005) Traditional justifications for civil disobedience emphasize the limits of legitimate political authority and defend civil disobedience as a just response when governments overstep these limits. Such liberal justifications are well suited to certain classes of civil disobedie…

To Insure Prejudice: Racial Disparities in Taxicab Tipping

114 Yale L.J. 1613 (2005) Many studies have documented seller discrimination against consumers, but this Essay tests and finds that consumers discriminate based on the seller's race. The authors collected data on more than 1000 taxicab rides in New Haven, Connecticut in 2001. After controlling for a …

Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It

114 Yale L.J. 535 (2004) Recent cases and scholarship have debated whether copyright law is consistent with the First Amendment. Much of the discussion has centered on copyright law's ability to suppress transformative, creative reuses of copyrighted works and on copyright's fair use doctrine as a m…

Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production

114 Yale L.J. 273 (2004) This Essay offers a framework to explain large-scale effective practices of sharing private, excludable goods. It starts with case studies of carpooling and distributed computing as motivating problems. It then suggests a definition for shareable goods as goods that are "lump…

Integrating Remorse and Apology into Criminal Procedure

114 Yale L.J. 85 (2004) Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substan…

The Priority of Morality: The Emergency Constitution's Blind Spot

113 Yale L.J. 1753 (2004) INTRODUCTION In the wake of the terrorist attacks of September 11, Attorney General John Ashcroft announced a campaign of aggressive preventive detention. Invoking Robert Kennedy, the Attorney General announced that just as Kennedy would arrest a mobster for "spitting on the…

Editor's Note: The Constitution in Times of Emergency

113 Yale L.J. 1751 (2004) Earlier in this Volume of The Yale Law Journal, Professor Bruce Ackerman published his essay The Emergency Constitution, in which he advocated a new constitutional regime to confront the potential for recurring terrorist attacks among modern nations--and the United States in…

The Anti-Emergency Constitution

113 Yale L.J. 1801 (2004) INTRODUCTION The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril--the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the d…

Adverse Selection in Insurance Markets: An Exaggerated Threat

113 Yale L.J. 1223 (2004) The phrase "adverse selection" was originally coined by insurers to describe the process by which insureds utilize private knowledge of their own riskiness when deciding to buy or forgo insurance. If A knows he will die tomorrow (but his insurer does not), life insurance th…

The Emergency Constitution

113 Yale L.J. 1029 (2004) Terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it--not on a plane next time, but with poison gas in the subway or a biotoxin in the wat…

Juries and Race in the Nineteenth Century

113 Yale L.J. 895 (2004) The Supreme Court's jurisprudence on criminal juries has overlooked an important piece of history. This is most notable in the context of its jury discrimination jurisprudence over the past twenty years. In Batson v. Kentucky, the Court held that the Equal Protection Clause p…

Bargaining in the Shadow of Takeover Defenses

113 Yale L.J. 621 (2003) For decades, practitioners and academic commentators who believe that target boards should have broad discretion to resist hostile takeover attempts have put forward the "bargaining power hypothesis" to support their view. This hypothesis states that a target with strong tak…

Insider Abstention

113 Yale L.J. 455 (2003) Scholars writing on insider trading have long believed that insiders can beat the market simply by using nonpublic information to decide when not to trade. Using a simple model, this Essay has shown that the conventional wisdom is wrong. Insiders prevented from trading while …

Minorities, Shareholder and Otherwise

113 Yale L.J. 119 (2003) "[M]en are described as I think they are," Adolf Berle writes of his work, "rather than as they think they are." He continues: "Some will be shocked. The businessman will find that he is a politician and a commissar--perhaps even a revolutionary one. The liberal finds himsel…

Digital Architecture as Crime Control

112 Yale L.J. 2261 (2003) The first generation of cyberlaw was about what regulates cyberspace. Led by Larry Lessig's path-breaking scholarship isolating architecture as a constraint on behavior online, a wide body of work has flourished. In a recent article, I took those insights and reverse-engine…

How Much Redistribution Should There Be?

112 Yale L.J. 2291 (2003) Egalitarianism ties people's fortunes together. It takes the good and bad things in people's lives--their blessings and their afflictions--and shares them out, or redistributes them, among their fellows. Where egalitarianism operates, each person's fortunes and misfortunes c…

Eldred and Lochner: Copyright Term Extensionand Intellectual Property as Constitutional Property

112 Yale L.J. 2331 (2003) As intellectual property has become increasingly important to the national economy, a consensus has emerged among academics that courts should scrutinize congressional legislation closely under the Constitution's Copyright Clause. This Essay has challenged the academic conse…

Common Law, Common Ground, and Jefferson's Principle

112 Yale L.J. 1717 (2003) Why do we care about the Framers of the Constitution? After all, they lived long ago, in a world that was different in countless ways from ours. Why does it matter what their views were, for any reasons other than purely historical ones? And if we don't care about the Framer…

The Secret History of Race in the United States

112 Yale L.J. 1473 (2003) In the beginning, there was a man named Looney. George Looney's world was Buchanan County, Virginia, a pocket of Appalachian hills and hollows that juts into Kentucky and West Virginia. In 1911, his place in this world was secure. Where lumber was the only industry in town, …

Economic Analysis of Contract Law After Three Decades: Success or Failure?

112 Yale L.J. 829 (2003) Modern economic analysis of contract law began about thirty years ago and, many scholars would agree, has become the dominant academic style of contract theory. Traditional doctrinal analysis exerts less influence than it did prior to 1970 and enjoys little prestige. Philosop…

Vigorous Race or Leisurely Walk: Reconsidering the Competition over Corporate Charters

112 Yale L.J. 553 (2002) Does American corporate law work effectively to enhance shareholder value? The recent corporate governance crisis makes this time as good as any for reexamining the basic structure of this body of law. This Essay provides such a reconsideration of a defining feature of U.S. c…

100 Million Unnecessary Returns: A Fresh Start for the U.S. Tax System

112 Yale L.J. 261 (2002) We are now in a quiet interlude awaiting the next serious political debate over the nation's tax system. No fundamental tax policy concerns were at stake in the 2002 disputes over economic stimulus or the political huffing and puffing about postponing or accelerating the inco…

Probability Neglect: Emotions, Worst Cases, and Law

112 Yale L.J. 61 (2002) In this Essay, my central claim has been that the probability of harm is often neglected when people's emotions are activated, especially if people are thinking about the worst-case scenario. If that scenario is vivid and easy to visualize, large-scale changes in thought and b…

Local Policing After the Terror

111 Yale L.J. 2137 (2002) Crime waves always carry with them calls for more law enforcement authority. What happened on September 11, 2001 was, among other things, a crime wave--because of that one day, the number of homicides in America in 2001 will be twenty percent higher than the year before. It…

Legislative Entrenchment: A Reappraisal

111 Yale L.J. 1665 (2002) There is a principle of constitutional law holding that "one legislature may not bind the legislative authority of its successors." The Supreme Court recently discussed that principle at length in United States v. Winstar, and although the case was decided on other grounds,…

Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique

111 Yale L.J. 1707 (2002) Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, legal scholars have been obsessed with the countermajoritarian aspects of judicial review. Much of the literature is normative--how can the dilemma of judicial re…

Stopping Above-Cost Predatory Pricing

111 Yale L.J. 941 (2002) This Essay has refocused the predatory pricing debate on ex ante incentives--i.e., the incentives for entry and limit pricing before the predatory period--instead of the traditional focus of high prices after the predatory period. Ideally, a monopoly incumbent should price re…

Categorical Federalism: Jurisdiction, Gender, and the Globe

111 Yale L.J. 619 (2001) An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense t…

Veil of Ignorance Rules in Constitutional Law

111 Yale L.J. 399 (2001) A veil of ignorance rule (more briefly a "veil rule") is a rule that suppresses self-interested behavior on the part of decisionmakers; it does so by subjecting the decisionmakers to uncertainty about the distribution of benefits and burdens that will result from a decision. …

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Disaggregating Constitutional Torts

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Differences Between Criminal vs. Civil Law Research Paper

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The contemporary society can be described as a multi-layered system that functions effectively due to the existence of multiple institutions regulating its development and cooperation between all individuals. The Justice system belongs to these fundamentals as it guarantees protection to people. Regarding the increased complexity of relations in the modern world, there are civil and criminal laws that exist to differentiate various cases and introduce appropriate punishments for lawbreakers not insulting their basic rights and preserving the chance to integrate with the society in the future. That is why it is critical to realize the differences between these two laws existing in the justice system.

Civil and criminal law are two separate entities that have certain regulations and appropriate punishments for various offenses. The first one deals with a set of behaviors or actions that injure an individual or another private party, organization, or corporation (Erstad, 2018). Such cases involve property damage, breach of contract, negligence, or malpractice (Legal Aid Society, n.d.). Criminal law presupposes the work with acts that are considered a threat or offense against the public, society, and the state, even if victims of the wrong behavior are individuals (Erstad, 2018). Murders, assaults, and thefts are investigated by criminal law.

Both civil lawsuits and criminal trials rest on the idea that all sorts of crimes should be proved to avoid injustice and other failures. However, there is a significant difference in the standards that comes from the severity of offenses and punishments provided for them.

Civil cases traditionally presuppose lower standards of proof, such as the preponderance of the evidence (Legal Aid Society, n.d.). It means that a court considers a crime using the idea that some act is more probable to occur in a certain way than not (Erstad, 2018). Regarding criminal law, all crimes should be proved using credible evidence and solid facts because of the existing presumption of innocence (Erstad, 2018). These differences impact the work, of course, significantly.

In criminal courts, the government is the main accuser. It files a case against a person for committing a crime who is called a defendant (Reid, 2016). During the process, the government must provide evidence proving that a defendant is guilty beyond a reasonable doubt (Legal Aid Society, n.d.).

If the guilt is proven, he/she will be provided with the punishment and imprisoned. Otherwise, in civil court, one party sues against another party because of the existence of a particular problem between them; organizations, business agencies, and companies can also become parties (Erstad, 2018). If an individual loses a civil case, he/she might be obliged to pay a fine or return a particular property (Legal Aid Society, n.d.). Civil law does not presuppose imprisonment.

Finally, there is a critical difference between capital and non-capital offenses that should be considered while speaking about courts. The capital offense is determined as a serious crime that can be provided with the death penalty as an appropriate punishment; usually, the term is applied to murders (Reid, 2016). At the same time, non-capital crimes presuppose less severe penalties because of their nature. Regarding the client’s case involving her son breaking the front window of the restaurant, it can be considered a non-capital offense that will not presuppose a lengthy punishment.

Altogether, there is a significant divergence between civil and criminal law as they deal with different cases resting on their severity. The suggested offense can be considered a non-capital one as the boy broke the window of the restaurant, which is not a serious crime. Regarding the information provided above, the restaurant may file a case against him, but only a fine will be considered an appropriate punishment for this incident.

Erstad, W. (2018). Civil law vs. criminal law: Breaking down the differences . Web.

Legal Aid Society of Northeastern New York. (n.d.). The differences between criminal court and civil court . Web.

Reid, S. (2016). Criminal law: The essentials (3rd ed.). New York, NY: Oxford University Press.

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Civil Law- General Principles

The principles of civil law are fundamental to the good organization of any democratic state. Every system of law is governed by certain fundamental principles. The fundamental principles of the Romanian law are basic ideas that are found in the entire Romanian legislation, being enshrined in the fundamental law, as well as by other important laws. The general principles of civil law are guiding ideas for all civil legislation, targeting all civil law institutions.

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Title VII and Caste Discrimination

• Guha Krishnamurthi
• Charanya Krishnaswami
• See full issue

Introduction

In the summer of 2020, a report of workplace discrimination roiled Silicon Valley and the tech world. 1 An employee at Cisco Systems, Inc. (Cisco), known only as John Doe, alleged he had suffered an insidious pattern of discrimination — paid less, cut out of opportunities, marginalized by coworkers — based on his caste. 2 Consequently, the California Department of Fair Employment and Housing (DFEH) brought suit against Cisco, alleging that the employee’s managers and (thus) Cisco had engaged in unlawful employment discrimination. 3 Doe is a Dalit Indian. 4 Dalits were once referred to as “untouchables” under the South Asian caste system; they suffered and continue to suffer unthinkable caste-based oppression in India and elsewhere in the Subcontinent. 5 Doe claims that two managers, also from India but belonging to a dominant caste, 6 denigrated him based on his Dalit background, denied him promotions, and retaliated against him when he complained of the discriminatory treatment. 7 Thereafter, a group of thirty women engineers who identify as Dalit and who work for tech companies like Google, Apple, Microsoft, and Cisco shared an anonymous statement with the Washington Post explaining the caste bias they have faced in the workplace and calling for the tech industry to be better. 8

While Doe’s and the thirty women engineers’ allegations of caste discrimination raise novel questions about the application of civil rights statutes to workplace discrimination on the basis of caste, these allegations echo a tale as old as time: the millennia-old structure of caste discrimination and the systemic oppression of Dalits, which has been described as a system of “apartheid,” 9 the “[c]onstancy of the [b]ottom [r]ung,” 10 and reduction to the “lowest of the low,” 11 a fixed position that followed Doe and these thirty women engineers halfway around the world. DFEH’s case based on Doe’s allegations is still at the complaint stage, with a long road of discovery surely ahead. Other claims of caste discrimination, including by the thirty women engineers, have not yet been brought to court. Thus, for all these cases, a preliminary legal question beckons: Is a claim of caste discrimination cognizable under Title VII of the Civil Rights Act of 1964? 12 We argue that the answer is yes.

This Essay continues in two Parts. In Part I, we explain the basic contours and characteristics of the South Asian caste system and detail the reach and impact of caste in the United States. In Part II, we explain how caste discrimination is, as a legal matter, cognizable under Title VII as discrimination based on “race,” “religion,” or “national origin,” following the Supreme Court’s teaching in Bostock v. Clayton County , 13 in which the Court found that sexual orientation discrimination is a type of sex discrimination. 14 We briefly conclude, contending that, despite the coverage of caste discrimination under federal law, the U.S. Equal Employment Opportunity Commission (EEOC) or Congress should provide further clear guidance — and in doing so consider other kinds of discrimination throughout the world that should be explicitly prohibited in the United States. While addressing claims of caste discrimination through Title VII enforcement is just one of many steps that must be taken to eradicate caste-based discrimination, naming caste as a prohibited basis on which to discriminate has the added value of increasing public consciousness about a phenomenon that, at least in U.S. workplaces, remains invisible to many.

I. Caste Discrimination and Its Reach

A. brief description of the south asian caste system.

Caste is a structure of social stratification that is characterized by hereditary transmission of a set of practices, often including occupation, ritual practice, and social interaction. 15 There are various social systems around the world that have been described as “caste” systems. 16 Here, we will use “caste” to refer to the South Asian caste system that operates both in South Asia and in the diaspora. 17 As we will see, the South Asian caste system is a hierarchical system that involves discrimination and perpetuates oppression.

The South Asian caste system covers around 1.8 billion people, and it is instantiated in different ways through different ethnic, linguistic, and religious groups and geographies. 18 As a result, it can be difficult to say anything categorical about the caste system. Thus, our description identifies its broad contours and characteristics.

The caste system is rooted in the indigenous traditions, practices, and religions of South Asia. 19 We can generally refer to those traditions, practices, and religions as “Hinduism.” The term Hinduism, as we use it, is an umbrella term for a diversity of traditions, practices, and religions that may share no common thread except for geographical provenance. So defined, the term Hinduism is capacious. We separately identify Jainism, Buddhism, and Sikhism. As a matter of convention, Christianity and Islam are not generally considered or labeled indigenous religions of the Subcontinent, but the forms of those religions in the Subcontinent have distinctive features. 20

The caste system is an amalgamation of at least two different systems: varna and jati . 21 Varna is a four-part stratification made up of brahmana , kshatriya , vaishya , and shudra classes. 22 These classes have been characterized as the priestly class, the ruler-warrior class, the merchant class, and the laborer class, respectively. 23 There is implicitly another varna — those excluded from this four-part hierarchy. 24 They are sometimes described as belonging to the panchama varna (literally, the “fifth varna ”). 25 The panchama varna is treated as synonymous with the term “untouchable” 26 — now called “Dalit.” 27

Alongside the varna system is the jati system. Jati refers to more specific groupings, and in the actual practice of the caste system, jati is much more significant. 28 There are thousands of jati -s, and jati identity incorporates, among other things, traditional occupation, linguistic identity, geographical identity, and religious identity. 29 Similar to varna , there is a large underclass in the jati system made up of many jati -s. Those include jati -s based on certain traditional occupations viewed as “unclean,” like agricultural workers, scavengers, cobblers, and street sweepers. 30 They also include certain tribal identities, called “Adivasis.” 31 The relationship between varna and jati is complex. At various junctures, people have attempted to place jati -s within a varna , to create a unified system of sorts. This attempted fusion inevitably continues the “tradition of dispute over whether these two hierarchies coincide, and which is the more fundamental.” 32

The foundations of the caste system are nebulous at best. The system may have had some grounding in primitive racial, color, ethnic, or linguistic distinctions, but that is unclear. 33 Nevertheless, the resulting caste system can be characterized with at least the following core traits: (1) hereditary transmission and endogamy; (2) strong relationships with religious and social practice and interaction; (3) relationships with concepts of “purity” and “pollution”; and (4) hierarchical ordering, including through perceived superiority of dominant castes over oppressed castes, hierarchy of occupation, and discrimination and stigmatization of oppressed castes. 34

As observed, the caste system is rooted in Hinduism. 35 And it continues to live in modern Hindu practice. 36 Of course, many Hindus are committed to the eradication of caste and the belief that true Hindu belief eschews (and has always eschewed) the evils of caste. 37 But modern Hindu practice continues to recognize and entrench caste in religious and social practice and interaction, and people suffer oppression and discrimination on the basis of caste. 38 The tentacles of caste oppression extend beyond modern Hindu practice as well: in South Asia, caste distinction and oppression manifests in Christian, Muslim, Sikh, and Jain communities, among others. 39 As a detailed report on caste by the Dalit-led research and advocacy group Equality Labs has observed, “[t]his entire [caste discrimination] system is enforced by violence and maintained by one of the oldest, most persistent cultures of impunity throughout South Asia, most notably in India, where despite the contemporary illegality of the system, it has persisted and thrived for 2,500 years.” 40 There is no doubt that Hinduism provided the foundation for caste discrimination and oppression and that modern Hindu practice continues to perpetuate it. But the insidiousness of caste discrimination is such that it sprouts and thrives even when divorced from its doctrinal home of Hinduism, and even when there is claimed caste eradication.

Regarding caste hierarchy, the ordering is complex, incomplete, and controversial. There is no lineal ordering, and any putative ordering is not definitive. Brahmana are generally described as occupying the top of the proverbial pyramid, though kshatriya and vaishya communities often claim divine lineage, and do not necessarily recognize any so-called brahmana supremacy. 41 These three varna are usually understood to form the core of the so-called “upper,” or dominant, castes. 42 Those of the four named varna -s have historically been ranked as “superior” to those of the fifth ( panchama ) varna — the “untouchables” or Dalits. 43 Similarly clear is that those categorized as brahmana , kshatriya , and vaishya have historically subjugated the shudra varna . 44

Of course, these hierarchical comparisons are entirely bigoted and without merit. 45 As a result of them, Dalits, Shudras, and others have experienced and continue to experience horrific oppression at the hands of dominant castes — what Equality Labs has described as a “system of Caste apartheid,” with oppressed castes “having to live in segregated ghettoes, being banned from places of worship, and being denied access to schools and other public amenities including water and roads.” 46

Oppressed-caste status impacts everything in one’s life. 47 It can impact one’s access to religious and social institutions — for example, Dalits and Shudras may be barred from entering temples, mosques, gurdwaras, and churches. 48 It may mean that they cannot eat in certain restaurants or shop at certain stores. It may mean that they are not allowed to marry people of different caste lineage 49 — and will be killed if they try. 50 It may mean that they cannot eat in certain people’s houses. 51 It may mean that they are not even allowed to cremate or bury their dead. 52 Moreover, oppressed-caste individuals have often been subjected to hate-based violence, with no genuine access to jus-tice. 53 And, as a political matter, individuals of oppressed castes have often been denied meaningful representation. 54

Consequently, South Asian governments have attempted to address these problems, at least nominally, through prohibitions on discrimination 55 and through “reservation” — systems that seek to uplift these oppressed communities through uses of quotas in education and employment. 56 These actions have faced continued opposition from members of dominant castes. 57 And, as a result, Dalits, Adivasis, and Other Backward Classes (OBCs) who obtain reservation are often discrimi-nated against as potential beneficiaries of reservation, even though res-ervation was meant to rectify and address millennia of caste-based oppression.

Finally, and relevantly, the South Asian caste system has traveled beyond the borders of the Subcontinent. The South Asian diaspora observes caste identity, and there is consequent caste discrimination. 58 As Bhimrao Ramji Ambedkar, a leader of the Dalit liberation movement and author of the Indian Constitution, stated, caste discrimination and oppression “is a local problem, but one capable of much wider mischief, for ‘as long as caste in India does exist, Hindus will hardly intermarry or have any social intercourse with outsiders; and if Hindus migrate to other regions on earth, Indian caste would become a world problem.’” 59

B. The Impact of Caste in the United States

The immigration of South Asians to the United States has come in waves, each of which has changed the caste dynamics of the population. While today the population is viewed as a monolith, from the earliest days of South Asian migration, dominant-caste members of the diaspora sought to differentiate themselves from the oppressed others. 60 Given dominant-caste members’ fears that crossing an ocean would cause them to lose their caste status, the earliest migrants to the United States were those who had nothing to lose: predominantly oppressed-caste and non-Hindu people. 61

At the turn of the twentieth century, xenophobic backlash against East and South Asian immigrants led to new laws forbidding nonwhite immigrants from accessing citizenship, with heart-wrenching consequences for South Asian immigrants who had forged lives and families in the country. 62 In 1923, Bhagat Singh Thind, a dominant-caste immigrant born in Amritsar, Punjab, “sought to make common cause with his upper-caste counterparts in America,” 63 effectively arguing his ethnic background and caste laid a claim to whiteness in his adopted coun-try — claims, as Equality Labs notes, the caste-oppressed could never make. 64

Today, there are nearly 5.4 million South Asians in the United States. 65 From 2010 to 2017, the South Asian population grew by a “staggering” forty percent. 66 The first wave of modern migration from the Subcontinent took place in the wake of the Immigration and Nationality Act of 1965, 67 which removed discriminatory national origin-based quotas, and which established the modern immigration system based on work and family ties. 68 Equality Labs notes the majority of South Asian immigrants who came to the United States after the 1965 reform were “professionals and students[,] . . . largely ‘upper’ Caste, upper class, the most educated, and c[oming] from the newly independent Indian cities.” 69 Oppressed-caste people, by contrast, having had at that point just limited access to educational and professional opportunities, came in smaller numbers. 70 The Immigration Act of 1990, 71 which liberalized employment-based migration, further opened up pathways for South Asian immigration to the United States. 72 This wave, according to Equality Labs, included a growing number of immigrants from historically oppressed castes who, through resistance movements and reforms in access to education and other opportunities, were increasingly able to harness sufficient mobility to migrate. 73 Even still, according to a 2003 study from the Center for the Advanced Study of India at the University of Pennsylvania, only 1.5% of Indian immigrants were members of Dalit or other oppressed castes, while more than 90% were from high or dominant castes. 74

Yet, contrary to the fears of the earliest South Asian immigrants to the United States, the fact of one’s caste is not shed by the crossing of an ocean. As South Asian immigrants have integrated into the United States in increasing numbers, caste discrimination among the diaspora’s members threatens to entrench itself as well. This caste discrimination is complicated and perhaps obscured by a second racial caste system in the United States: one which situates South Asians generally as an in-between “middle caste,” relatively privileged and sometimes conferred “model minority” status, yet still systematically excluded from the highest echelons of power and discriminated against on the basis of race and national origin. 75

Given how entrenched and ubiquitous caste oppression still is across South Asia, and how programmed and hereditary discriminatory attitudes can be, it is easy to imagine how a subtler, more insidious form of caste discrimination has replicated here. As the South Asian community in the United States has grown, so have, for example, identity groups organized around linguistic and caste identities, 76 informally entrenching caste divisions among South Asians in the United States. The only study of which we are aware concerning caste identity and discrimination in the United States, conducted by Equality Labs, found that, of 1,200 people surveyed, over half of Dalits in the United States reported experiencing caste-based derogatory remarks or jokes against them, and over a quarter reported experiencing physical assault based on their caste. 77

Of particular relevance to this paper, an astonishing two-thirds of Dalit respondents to the survey reported experiencing some form of discrimination in the workplace. 78 The workplace is one of the primary areas where caste discrimination manifests — perhaps because caste itself is historically predicated in part on one’s work, the notion that one’s birth consigns one to a certain occupation, and concomitantly a certain status and fate.

In the U.S. tech sector, which has a large South Asian workforce, 79 complaints of caste discrimination have been particularly rampant. Earlier this month, a group of thirty women engineers who identify as Dalit and who work for tech companies like Google, Apple, Microsoft, and Cisco issued a public statement to the Washington Post stating they had faced caste bias in the U.S. tech sector. 80 Other Dalit employees have described their fears of being “outed” in the workplace, as well as subtle attempts to discern their caste based on so-called “caste locator[s],” such as the neighborhoods where they grew up, whether they eat meat, or what religion they practice. 81 The risks of caste discrimination against oppressed-caste employees are exacerbated in professions with high numbers of South Asians, where programmed attitudes about caste superiority and inferiority can easily take hold. With this subtler, more insidious discrimination taking root, we must determine what recourse exists in the law to combat it.

II. Title VII’s Coverage of Caste

To answer the legal question, we first look at the statute. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. 82 Thus, for caste discrimination to be cognizable under Title VII, it must be cognizable as discrimination based on at least one of these grounds. The challenge is to determine which if any of these grounds encompasses caste discrimination.

Following the Supreme Court’s decision in Bostock v. Clayton County , our determination whether caste discrimination is cognizable under any of these grounds is governed by the text of the statute. 83 Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 84

The first question in determining coverage under Title VII is whether caste is in fact simply reducible to one of these categories. If not, the next question is whether caste discrimination satisfies the but-for causation test with respect to one of these categories. 85 As the Bostock Court explains:

[But-for] causation is established whenever a particular outcome would not have happened “but for” the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident occurred both because the defend-ant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to the challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law. 86

Finally, we can ask whether caste is “conceptually” dependent on one of these categories. 87 For all these questions, we may consider the original expected applications of the statute, but we are not limited to those expected applications. 88 Rather, we are led by the fair and reasonable meaning of the plain text, even if that goes beyond the expected applications. 89

As a preliminary determination, we can remove “sex” from the picture. Whatever caste discrimination is, it is self-evidently not on the basis of sex. At a first level, caste discrimination is not simply reducible to sex. Further, caste discrimination can be levied upon actors regardless of their sex, and without any appeal to their sex. Consequently, it meets neither the but-for causation test nor the conceptual dependence test. Of course, a person may experience discrimination based on caste and sex — for example, a Dalit woman may experience harassment based on both features of their identity. That raises questions of mixed motivation, addressed below. 90 But discrimination on the basis of caste alone does not necessarily implicate questions of sex.

That leaves national origin, race, color, and religion for our further investigation. We consider each in turn.

A. National Origin

We first contend that there is a plausible argument that caste discrimination constitutes discrimination on the basis of national origin.

Importantly, discrimination based on being South Asian is cognizable as discrimination based on “national origin.” 91 This may at first glance seem like an odd conclusion, since South Asia is not itself a nation. On this point, the EEOC explains: “National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).” 92 On this account, discrimination based on South Asian identity is clearly national-origin discrimination.

That said, straightforwardly, caste identity is not simply reducible to being South Asian. It is a further qualification of one’s South Asian identity.

In addition, the but-for test can be used to argue that caste discrimination is a form of national-origin discrimination, because it would not occur “but for” one’s national origin. Specifically, but for the employee having an ancestor who had a particular caste identity defined and dictated by South Asian culture and practice, the employee would not have been discriminated against. More simply, but for the employee having a particular South Asian heritage (that is, their involuntary membership in a South Asian caste hierarchy), the employee would not have been discriminated against. So that is national-origin discrimination.

And on the conceptual test: one cannot understand the employee’s caste identity without appeal to certain features of South Asian culture — thus, caste identity is conceptually dependent on South Asian identity and is therefore national-origin discrimination.

What exactly “race” is, and how “races” are properly defined, is an almost impenetrably difficult question. 93 There are compelling accounts of the caste system as, at its genesis, based on some variety of racial categorization, even if primitive. 94 And there are other accounts that claim that race is orthogonal to caste. 95 Resolving the question of whether caste is in fact reducible to or based on race would prove controversial, and so finding caste discrimination is racial discrimination because of caste’s relationship to race is an equally controversial proposition. Consequently, here, we do not pursue that type of argument.

There is however another sense in which caste may be simply reducible to race. If “race” means something like a group distinguished by ancestry, 96 then caste will select a particular “race,” because caste is a hereditary system that relates to ancestry. 97 The EEOC has suggested such an understanding of “race”: “Title VII does not contain a definition of ‘race.’ Race discrimination includes discrimination on the basis of ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features.” 98

The Supreme Court’s decision in Saint Francis College v. Al-Khazraji 99 supports the contention that discrimination based on “race” would be interpreted to include discrimination on the basis of “ancestry.” There, a professor — who was a United States citizen born in Iraq — filed suit alleging that his denial of tenure was based on his Arabian heritage and thus constituted unlawful discrimination under 42 U.S.C. § 1981. 100 The district court dismissed the complaint, ruling that a claim under § 1981 could not be maintained for discrimination based on being of the “Arabian race.” 101 The Court of Appeals for the Third Circuit reversed, holding that the complaint properly alleged discrimination based on race. In so doing, the court of appeals explained that § 1981 was not limited to present racial classifications. Instead, the statute evinced an intention to recognize “at the least, membership in a group that is ethnically and physiognomically distinctive.” 102

The Supreme Court affirmed the court of appeals’ decision and holding that discrimination based on “Arabian ancestry” is racial discrimination under 42 U.S.C. § 1981. 103 The Court stated that the court of appeals “was thus quite right in holding that § 1981, ‘at a minimum,’ reaches discrimination against an individual ‘because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens .’” 104 The Court cautioned, however, that this was sufficient but not necessary, and that in this case Arab heritage was sufficient because the statute evinced that Congress intended to protect people from discrimination “because of their ancestry or ethnic characteristics.” 105 Indeed, the Court may have been eschewing a biological or genetic conception of race, in favor of an understanding predicated on social construction. To this point, the Court noted:

Many modern biologists and anthropologists, however, criticize racial classifications as arbitrary and of little use in understanding the variability of human beings. It is said that genetically homogeneous populations do not exist and traits are not discontinuous between populations; therefore, a population can only be described in terms of relative frequencies of various traits. Clear-cut categories do not exist. The particular traits which have generally been chosen to characterize races have been criticized as having little biological significance. It has been found that differences between individuals of the same race are often greater than the differences between the “average” individuals of different races. These observations and others have led some, but not all, scientists to conclude that racial classifications are for the most part sociopolitical, rather than biological, in nature. 106

Thus, it seems that the Court understood ancestry discrimination as a type of racial discrimination. 107 And under the Court’s understanding of “ancestry or ethnic characteristics,” even if formed primarily due to sociopolitical forces, caste would qualify as ancestry, and thus caste discrimination as ancestry discrimination and “race” discrimination. 108

Of course, the current Supreme Court may not accept this formulation of race as including “discrimination on the basis of ancestry” or an “ethnic[] and physiognomic[]” subgrouping. Indeed, it is plausible that the Court would interpret “race” to be rooted in racial classifications that were salient in the American experience at the time of the Act’s passage. 109 The new Court could disclaim its decision in Al-Khazraji . Or the Court might decide that, while “Arabian” ancestry was salient at the time of the Act’s drafting, South Asian caste was not.

Notwithstanding, in light of the Court’s precedent and the EEOC’s definition of “race” as encompassing ancestry discrimination, there remains a sound basis to find that discrimination based on South Asian caste is encompassed within Title VII’s category of “race.”

The analysis of whether caste discrimination is discrimination based on “color” is similar to the analysis under “race.” Just as with “race,” it likely rises or falls based on controversial questions about the nature of caste, along with difficult questions about the meaning of “color.”

Like “race,” “color” is not defined by Title VII. The EEOC explains that “[c]olor discrimination occurs when a person is discriminated against based on his/her skin pigmentation (lightness or darkness of the skin), complexion, shade, or tone. Color discrimination can occur between persons of different races or ethnicities, or even between persons of the same race or ethnicity.” 110

Based on the EEOC’s interpretation and a fair interpretation of the text, it does seem that for caste discrimination to be discrimination on the basis of “color” it must be related to discrimination based on skin “pigmentation . . . , complexion, shade, or tone” 111 (which, for ease, we call “visual skin color”). Finding that caste identity is related to visual skin color is difficult. 112 There is some empirical support for the claim, 113 but at the moment the strength of that relationship is uncertain. 114 As a historical matter, varna has one definition which literally translates to “color.” 115 If this referred to visual skin color, then there may be a strong basis — grounded in history and continued by a hereditary, endogamous system — to find caste discrimination as a type of color discrimination. But the consensus scholarly view seems to be that varna did not refer to skin color. 116

As a result, and based on our current understanding, we contend that for purposes of interpreting Title VII, caste discrimination is not best understood as discrimination on the basis of “color.”

D. Religion

What about religion? We contend that there is a plausible argument that caste discrimination can be viewed as discrimination based on religion.

Importantly, discrimination on the basis of religion can be on the basis of religious heritage. 117 That is, if an employee is discriminated against because their ancestors had particular religious beliefs or had a particular religious association, that is religious discrimination, even if the employee does not have those beliefs or accept that association.

Now, suppose a manager discriminates against an employee for their caste identity. The employee has the caste identity of being a Shudra or a Dalit. We know that is a feature of their religious heritage, and so we need not further ask whether the employee has any particular religious beliefs or accepts the association. The question is firmly whether this feature of their heritage is religious heritage. We think it is.

First, caste identity is inextricably linked to religious practice. Caste identity places one in a particular (complex) hierarchy in how they are viewed within a religious community, and in religious terms such as purity, pollution, and piety. In particular, someone being a Shudra or a Dalit means that they are, due to bigotry, seen as occupying a lesser position or role in their religious community — whatever their religion is. Historically, access to places of worship has, and continues to be, closely linked to one’s caste identity. 118 And it is a core facet of caste that it places one in that hierarchy. Consequently, discrimination based on caste is discrimination based on one’s role in their religious community — and that is religious discrimination. 119

An example may clarify: Suppose an employee of unknown religion confesses to their manager that their clan is seen as the lowest in their religious community — but the employee gives no further details about their religion. The manager is disgusted by this and fires them. In so doing, the manager is discriminating against the employee because of a facet of their religious identity. Even though the manager is largely ignorant of the employee’s religious identity, that is still plainly religious discrimination.

In a similar vein, we might also argue that caste identity always qualifies one’s religious identity. It is, in a sense, being part of a particular sect of a religion. Understood thusly, it is pellucid that caste discrimination should constitute religious discrimination.

Now one might object that caste identity is compatible with different religious identities. For example, one can be a Shudra or a Dalit and be of many different religious backgrounds — among other things, Hindu, Jain, Sikh, Christian, Muslim, Buddhist. What if the manager does not care at all about the employee’s religion? Would this take caste discrimination outside the scope of religious discrimination?

We think not. First, as argued above, we think that caste discrimination is discrimination based on position in religious society — and thus is religious discrimination. But caste also impacts other parts of one’s life, so the objecting manager may protest that religion has nothing to do with their motivations. Even still, we think the argument is unavailing for another reason: because caste relates to religious heritage. That is, to discriminate against someone based on caste is usually to discriminate against them on the basis that they had an ancestor who occupied a certain position in Hindu society. This is for the simple fact that the caste system is inherited from Hindu society — and one’s caste identity arises from ancestors who occupied a certain position in that Hindu society. We contend that this is religious discrimination. That is because we understand discrimination based on religious heritage as discrimination on the basis of religion, irrespective of the employee’s actual beliefs. 120 But this may also be properly considered discrimination on the basis of ancestry, and therefore as discrimination on the basis of race or national origin. Important here is to recognize that there may be overlap between these categories. 121

In light of that, we can put this idea simply in terms of the but-for test: But for the employee having an ancestor who had a particular caste identity as defined and dictated by Hindu religious practice, the employee would not have been discriminated against. Ergo, but for the employee having a particular Hindu heritage, the employee would not have been discriminated against. Hence, had the employee’s ancestors not been Hindu, the employee would not have their caste identity (that was the subject of discrimination). That is then clearly religious (heri-tage) discrimination.

The conceptual test reaches the same conclusion: one cannot understand the employee’s caste identity without appeal to certain Hindu ideas — thus, caste identity is conceptually dependent on religious practice and is therefore religious discrimination. 122

E. Mixed Motivation

One’s caste identity may be determined by myriad features, other than purely ancestral traits. Their caste identity could, for example, be defined by adopted religion, where one lives, and what languages one speaks, among other things. 123 Bhimrao Ramji Ambedkar, himself a Dalit, converted to Buddhism from Hinduism because he believed caste discrimination was endemic to Hinduism. 124 In addition to his own conversion, Ambedkar led a mass conversion movement, called the Ambedkarite Buddhism movement (or the Dalit Buddhist movement). 125 Those who were or are part of that movement may identify as Dalit Buddhists, due to their ancestral Dalit identity and their non-ancestral trait of their religious beliefs.

Discrimination against someone based on this combined identity — here, being a Dalit Buddhist — will in the vast majority of cases satisfy the but-for causation test with respect to the ancestral portion of their caste identity. For example, we could imagine someone who discriminated against a Dalit Buddhist, but not a Dalit Hindu nor a non-Dalit Buddhist. The discriminator’s motivation for discrimination is not simply that the employee is a Dalit, but that they are a Dalit who flouted Hindu identity by converting to Buddhism. However, in such an example, but for the person’s Dalit identity, they would not have been discriminated against. 126

One common strategy to defeat recognizing discrimination on mixed-motivation is to disentangle the purportedly separate motivations and then question each in isolation. For example, suppose an employee claims she is being discriminated against for being a Black woman, but the employer also discriminated against non-Black women as well as Black men. Applying a “divide-and-conquer” strategy, the employer may be able to undermine but-for causation on either of the bases of being Black or being a woman, by using non-Black employees (including discriminated-against women) as comparators for assessing the racial component of her claim, while using male employees (including discriminated-against Black men) as comparators for the gendered component. A similar argument might arise against the Dalit Buddhist, where the employer discriminates against non-Buddhist Dalits as well as non-Dalit Buddhists.

Here, Professor Kimberlé Crenshaw’s work is critical and illuminating. Among her observations, she recognized that discrimination across multiple axes of identity may result in particularly pernicious treatment for the targets of such discrimination. 127 Crenshaw’s theory of intersectionality may allow targets of multiaxial discrimination to use comparators who suffer discrimination, but not as severe, to ground their claims. 128 In our examples, if Dalit Buddhists are treated more severely than Dalit non-Buddhists and non-Dalit Buddhists, they can still ground their claim as they suffer worse treatment than these comparators. 129

Caste discrimination is in our midst in the United States. Given the nature of caste, which seeks to indelibly mark and stigmatize, this discrimination reaches all facets of life, and thus, it is no surprise that it enters our workplaces. This issue requires our collective awareness and our vigilance. We have argued that Title VII gives us the tools to ensure that we can prevent, rectify, and ensure restitution for caste discrimination. In particular, we have shown how under the text of Title VII, in light of the Supreme Court’s teaching in Bostock v. Clayton County , caste discrimination is cognizable as race discrimination, religious discrimination, and national origin discrimination.

While these arguments are strong, given that judicial interpretation of Title VII’s protections are in flux, the surest way to ensure that workers who experience caste discrimination are able to access recourse is to explicitly enshrine “caste” as a prohibited basis of discrimination, in both executive-branch policy and in the text of Title VII itself. The EEOC could issue an opinion letter or guidance clarifying that Title VII’s provisions prohibiting race, national origin, and/or religious discrimination forbid discrimination on the basis of caste. An even stronger protection, of course, would be for Congress to pass legislation that explicitly states that caste discrimination is unlawful under Title VII. Even in this time of extreme partisanship, this is uncontroversial and should garner bipartisan support. 130 Furthermore, though we do not contend that EEOC guidance or amending Title VII thusly would serve as a magic-bullet solution to a complicated, deep-rooted problem, it would have an important signaling effect, putting workplaces on notice that caste-based discrimination is real and must be vigilantly addressed. Finally, although we address South Asian caste discrimination in particular, there are other types of “caste” and ancestry discrimination that occur around the globe. 131 We think that this case study of caste discrimination, and how it may be addressed by Title VII, applies generally. In that spirit, both the executive branch and Congress should act to clarify that all varieties of global “caste” discrimination are unlawful and intolerable in a just society.

* Assistant Professor, South Texas College of Law. ** J.D., 2013, Yale Law School. The views expressed in this Essay represent solely the personal views of the authors. The South Asian caste system was and is a paradigm of injustice. It has perpetuated incomprehensible suffering. We wish to acknowledge that we are, as a matter of ancestry, members of the dominant Brahmin caste — a designation that has conferred upon us systemic privilege we have done nothing to deserve. We would like to thank Susannah Barton Tobin, Mitchell Berman, Anisha Gupta, Alexander Platt, Charles Rocky Rhodes, Peter Salib, Anuradha Sivaram, and Eric Vogelstein for insightful comments and questions. We would also like to acknowledge the pathbreaking work of Equality Labs on these issues, which served as an inspiration for this Essay.

^ See Yashica Dutt, Opinion, The Specter of Caste in Silicon Valley , N. Y. TIMES (July 14, 2020), https://www.nytimes.com/2020/07/14/opinion/caste-cisco-indian-americans-discrimination.html [ https://perma.cc/DMS8-LCTF ]; David Gilbert, Silicon Valley Has a Caste Discrimination Problem , VICE NEWS (Aug. 5, 2020, 8:16AM), https://www.vice.com/en/article/3azjp5/silicon-valley-has-a-caste-discrimination-problem [ https://perma.cc/W3V8-H6WN ]; Thenmozhi Soundararajan, Opinion, A New Lawsuit Shines a Light on Caste Discrimination in the U.S. and Around the World , WASH. POST (July 13, 2020, 4:57 PM), https://www.washingtonpost.com/opinions/2020/07/13/new-lawsuit-shines-light-caste-discrimination-us-around-world [ https://perma.cc/5CV8-LC64 ].

^ Paige Smith, Caste Bias Lawsuit Against Cisco Tests Rare Workplace Claim , BLOOMBERG L. (July 17, 2020, 2:45 AM), https://news.bloomberglaw.com/daily-labor-report/caste-bias-lawsuit-against-cisco-tests-rare-workplace-claim [ https://perma.cc/2E6E-A7TN ]; Press Release, California Dep’t of Fair Emp. & Hous., DFEH Sues Cisco Systems, Inc. and Former Managers for Caste-Based Discrimination (June 30, 2020), https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/06/Cisco_2020.06.30.pdf [ https://perma.cc/VWC2-79J7 ].

^ Press Release, California Dep’t of Fair Emp. & Hous., supra note 2. DFEH initially brought suit in the United States District Court for the Northern District of California, alleging violations of Title VII. Id . Thereafter, on October 16, 2020, DFEH voluntarily dismissed the suit without prejudice, stating its intention to refile in California state court. California Drops Caste Discrimination Case Against Cisco, Says Will Re-file , The Wire (Oct. 21, 2020), https:// thewire.in/caste/california-drops-caste-discrimination-case-against-cisco-says-will-re-file [ https://perma.cc/P6Z7-E8NM ]. This action may have been because of some question as to whether caste discrimination is cognizable under Title VII or other federal law. If so, we contend this Essay establishes that it is.

^ Gilbert, supra note 1.

^ E.g ., Hum. Rts. Watch, Caste Discrimination (2001), https://www.hrw.org/reports/pdfs/g/general/caste0801.pdf [ https://perma.cc/YA8L-Z8PR ] (discussing discrimination against Dalits in South Asia); Hillary Mayell, India’s “Untouchables” Face Violence, Discrimination , Nat’l Geographic (June 2, 2003), https://www.nationalgeographic.com/pages/article/indias-untouchables-face-violence-discrimination [ https://perma.cc/L5XE-263U ] (“Human rights abuses against [‘untouchables’], known as Dalits, are legion.”).

^ We will use the term “dominant caste” to refer to the so-called “upper castes,” which better reflects the hierarchy of power that has created systemic oppression of Dalits, Adivasis, and other disfavored castes. We will use the term “oppressed caste” to refer to Dalits, Adivasis, and other disfavored castes. See infra notes 41–44 and accompanying text.

^ See Dutt, supra note 1.

^ Nitasha Tiku, India’s Engineers Have Thrived in Silicon Valley. So Has Its Caste System ., Wash. Post (Oct. 27, 2020, 6:45 PM), https://www.washingtonpost.com/technology/2020/10/27/indian-caste-bias-silicon-valley [ https://perma.cc/VP2F-U7QX ].

^ Maari Zwick-Maitreyi, Thenmozhi Soundararajan, Natasha Dar, Ralph F. Bheel & Prathap Balakrishnan, Equal. Labs, Caste in the United States: A Survey of Caste Among South Asian Americans 10 (2018), https://static1.squarespace.com/static/58347d04bebafbb1e66df84c/t/603ae9f4cfad7f515281e9bf/1614473732034/Caste_report_2018.pdf [ https://perma.cc/7PW3-DUL5 ] [hereinafter Caste in the United States ].

^ Isabel Wilkerson, Caste: The Origins of Our Discontents 128 (2020).

^ Sri Sri Ravi Shankar, Opinion, Securing the Rights of India’s “Untouchables ,” The Hill (Feb. 27, 2018, 3:30 PM), https://thehill.com/opinion/international/375851-securing-the-rights-of-indias-untouchables [ https://perma.cc/2L2S-9Z67 ].

^ 42 U.S.C. § 2000e et seq .

^ 140 S. Ct. 1731 (2020).

^ Id . at 1737.

^ E.g ., A New Dictionary of the Social Sciences 194 (G. Duncan Mitchell ed., 2d ed. 1979) (defining “social stratification” and explaining the concept of “caste”).

^ See generally, e.g ., Elijah Obinna, Contesting Identity: The Osu Caste System Among Igbo of Nigeria , 10 Afr. Identities 111 (2012) (describing the Osu caste system among the Igbo people in Nigeria); Tal Tamari, The Development of Caste Systems in West Africa , 32 J. Afr. Hist . 221 (1991) (explaining endogamous groups that exist in West Africa); Hiroshi Wagatsuma & George A. De Vos , The Ecology of Special Buraku , in Japan’s Invisible Race: Caste in Culture and Personality 113–28 ( George A. De Vos & Hiroshi Wagatsuma eds., 1966) (describing Japan as having a caste system and discussing the position and oppression of the Buraku people); Paul Eckert, North Korea Political Caste System Behind Abuses: Study , Reuters (June 5, 2012, 9:11 PM), https://www.reuters.com/article/us-korea-north-caste/north-korea-political-caste-system-behind-abuses-study-idUSBRE85505T20120606 [ https://perma.cc/NZ9Z-4J3L ] (describing the “Songbun” caste system in North Korea).

^ A New Dictionary of the Social Sciences , supra note 15, at 194 (stating that the “classical Hindu system of India approximated most closely to pure caste”).

^ The caste system continues to exist in some form in Bangladesh, India, Nepal, and Pakistan, among other countries, which collectively have a population of nearly 1.8 billion people. See Population, Total — India, Pakistan, Bangladesh, Nepal , World Bank Grp ., https://data.worldbank.org/indicator/SP.POP.TOTL?end=2019&locations=IN-PK-BD-NP&start=2019&view=bar [ https://perma.cc/8YYT-XN24 ] (searches for country populations); Iftekhar Uddin Chowdhury, Caste-Based Discrimination in South Asia: A Study of Bangladesh 2, 51–55 (Indian Inst. Dalit Stud., Working Paper Vol. III No. 7, 2009), http://idsn.org/wp-content/uploads/user_folder/pdf/New_files/Bangladesh/Caste-based_Discrimination_in_Bangladesh__IIDS_working_paper_.pdf [ https://perma.cc/CQ5N-VFHJ ]; Peter Kapuscinski, More “Can and Must Be Done” to Eradicate Caste-Based Discrimination in Nepal , UN News (May 29, 2020), https://news.un.org/en/story/2020/05/1065102 [ https://perma.cc/JZ62-FVUB ]; Rabia Mehmood, Pakistan’s Caste System: The Untouchable’s Struggle , Express Trib . (Mar. 31, 2012), https://tribune.com.pk/story/357765/pakistans-caste-system-the-untouchables-struggle [ https://perma.cc/4H9Z-46SJ ]; Pakistan Dalit Solidarity Network & Int’l Dalit Solidarity Network , Caste-Based Discrimination in Pakistan 2–3 (2017), https://www.ecoi.net/en/file/local/1402076/1930_1498117230_int-cescr-css-pak-27505-e.pdf [ https://perma.cc/77TM-P8WB ]; Mari Marcel Thekaekara, Opinion, India’s Caste System Is Alive and Kicking — And Maiming and Killing , The Guardian (Aug. 15, 2016, 11:55 AM), https://www.theguardian.com/commentisfree/2016/aug/15/india-caste-system-70-anniversary-independence-day-untouchables [ https://perma.cc/ER4H-L4KY ].

^ In one important passage, the Rig Veda describes a four-part social hierarchy — of the brahmana , rajanya (later associated with the kshatriya class), vaishya , and shudra . The Hymns of the Rigveda 10.90.12 (Ralph T.H. Griffith trans., Motilal Banarsidass 1973). The Bhagavad Gita also details the general distinction of caste. The B hagavad-GÎt 4.13 , at 110 (A. Mahâdeva Śâstri trans., 2d ed. 1901) (describing the four-fold division of mankind). The Dharmasastras and Dharmasutras , compilations of texts about various Hindu cultural practices, offer an extremely detailed account of the operation of the caste system. The proper understanding of all of these sources is up for debate. See, e.g ., Dharmasūtras: The Law Codes of Āpastamba, Gautama, Baudhāyana, and Vasiṣṭha , at xlii–xliii (Patrick Olivelle ed., trans., Oxford U. Press 1999) (contending that the Dharmasutras are “normative texts” but contain “[d]ivergent [v]oices,” id . at xlii); J.E. Llewellyn, The Modern Bhagavad Gītā : Caste in Twentieth-Century Commentaries , 23 Int’l J. Hindu Stud . 309, 309–23 (2019) (analyzing differing interpretations of caste by leading Hindu thinkers); M.V. Nadkarni, Is Caste System Intrinsic to Hinduism? Demolishing a Myth , 38 Econ. & Pol. Wkly . 4783, 4783 (2003) (arguing that Hinduism did not support the caste system); Chhatrapati Singh, Dharmasastras and Contemporary Jurisprudence , 32 J. Indian L. Inst . 179, 179–82 (1990) (explaining the various ways of interpreting the Dharmasastras ); Debate Casts Light on Gita & Caste System , Times of India (Apr. 8, 2017, 7:10 PM), https://timesofindia.indiatimes.com/articleshow/58072655.cms [ https://perma.cc/Q5XG-MSA9 ] (describing a “heated debate” over interpretations of the Bhagavad Gita ). Regardless, what is clear is that caste was endemic to Hindu practice over time.

^ See generally, e.g ., U.A.B. Razia Akter Banu, Islam in Bangladesh 1–64 (1992) (explaining the distinctive nature of Islam in Bangladesh and Bengali communities); Adil Hussain Khan, From Sufism to Ahmadiyya 42–90 (2015) (detailing the rise of the distinctive Ahmadiyya sect of Islam that arose in Punjab); Rowena Robinson, Christians of India 11–38, 103–39 (2003) (explaining the distinctive Christianity that has developed in India, arising from the mixing of Christian theology and practice and regional traditions); Paul Zacharia, The Surprisingly Early History of Christianity in India , Smithsonian Mag . (Feb. 19, 2016), https://www.smithsonianmag.com/travel/how-christianity-came-to-india-kerala-180958117 [ https://perma.cc/KRY4-UN3C ] (describing the traditions of the modern Syrian Christians of Kerala).

^ See generally Chandrashekhar Bhat, Ethnicity and Mobility 1–9 (1984); Declan Quigley, The Interpretation of Caste 4 (1993).

^ Sumeet Jain, Note, Tightening India’s “Golden Straitjacket”: How Pulling the Straps of India’s Job Reservation Scheme Reflects Prudent Economic Policy , 8 Wash. U. Glob. Stud. L. Rev . 567, 568 n.7 (2009) (outlining the four-part varna system).

^ Sean A. Pager, Antisubordination of Whom? What India’s Answer Tells Us About the Meaning of Equality in Affirmative Action , 41 U.C. Davis L. Rev . 289, 325 (2007) (discussing the so-called “untouchables,” outside the four-part varna system).

^ Bhat, supra note 21, at 2–3 (discussing the panchama varna and its traditional Vedic understanding); Varsha Ayyar & Lalit Khandare, Mapping Color and Caste Discrimination in Indian Society , in The Melanin Millennium 71, 75, 83 (Ronald E. Hall ed., 2012) (defining the fifth caste as describing “ex-untouchables,” id . at 83, or those outside of the varna system).

^ See Bhat , supra note 21, at 6–7; Ayyar & Khandare, supra note 25, at 75.

^ See Dalits , Minority Rts. Grp. Int’l , https://minorityrights.org/minorities/dalits [ https://perma.cc/TVV9-UN9R ].

^ Bhat, supra note 21, at 3 (discussing the jati system).

^ Padmanabh Samarendra, Census in Colonial India and the Birth of Caste , 46 Econ. & Pol. Wkly . 51, 52 (2011) (explaining the variety of factors that inform jati identity, based in part on region).

^ Who Are Dalits? , Navsarjan Tr ., https://navsarjantrust.org/who-are-dalits [ https://perma.cc/599J-QEHY ] (detailing the subdivisions based on profession within the Dalit community).

^ “Adivasi” and “scheduled tribe” are the terms for certain tribes in the Subcontinent. The term “Adivasi” itself means “original inhabitants.” Adivasis , Minority Rts. Grp. Int’l , https://minorityrights.org/minorities/adivasis-2 [ https://perma.cc/Q34Q-2L95 ]. They face severe discrimination in India and South Asia. Id .

^ Robert Meister, Discrimination Law Through the Looking Glass , 1985 Wis. L. Rev . 937, 975 (book review).

^ See supra note 19 and accompanying text.

^ See, e.g ., Indian Temple “Purified” After Low-Caste Chief Minister Visits , Reuters (Sept. 30, 2014, 9:10 AM), https://www.reuters.com/article/us-foundation-india-caste/indian-temple-purified-after-low-caste-chief-minister-visits-idUSKCN0HP1DE20140930 [ https://perma.cc/8NHE-MB9T ].

^ Caste in the United States , supra note 9, at 10.

^ Dipankar Gupta, Interrogating Caste 54–147 (2000) (observing that individual castes do not necessarily recognize claims of inferiority and thus questioning claims of strict hierarchy between the castes, especially between the “Brahman, Baniya [or vaishya ], [and] Raja [or kshatriya ],” id . at 116).

^ See Jain, supra note 22, at 569 n.7.

^ See sources cited supra note 5.

^ Kancha Ilaiah Shepherd, Where Are the Shudras? , Caravan (Sept. 30, 2018), https://caravanmagazine.in/caste/why-the-shudras-are-lost-in-today-india [ https://perma.cc/S6DY-U4BR ] (discussing discrimination against Shudra communities in India); Tapasya, Not Just “Dalits”: Other-Caste Indians Suffer Discrimination Too , Diplomat ( Aug. 27, 2019), https://thediplomat.com/2019/08/not-just-dalits-other-caste-indians-suffer-discrimination-too [ https://perma.cc/M67R-WE9G ].

^ See, e.g ., T.M. Scanlon, Why Does Inequality Matter? 26 (2018) (“Caste systems and societies marked by racial or sexual discrimination are obvious examples of objectionable inequality.”).

^ See generally Kaivan Munshi, Caste and the Indian Economy , 57 J. Econ. Literature 781 (2019) (explaining that “[c]aste plays a role at every stage of an Indian’s economic life,” from school, to university, to the labor market, and into old age, id . at 781).

^ See, e.g ., Nirmala Carvalho, Indian Church Admits Dalits Face Discrimination , Crux (Mar. 24, 2017), https://cruxnow.com/global-church/2017/03/indian-church-admits-dalits-face-discrimination [ https://perma.cc/M8QD-6E28 ]; Dheer, supra note 39 (observing that there were three separate Sikh shrines based on caste identity); Anuj Kumar, Dalit Women Not Allowed to Enter Temple , The Hindu (Nov. 1, 2019, 2:27 AM), https://www.thehindu.com/news/national/other-states/dalit-women-not-allowed-to-enter-temple/article29847456.ece [ https://perma.cc/BGJ5-HDA2 ]; Tension over Temple Entry by Dalits , The Hindu (Sept. 2, 2020, 6:08 PM), https://www.thehindu.com/news/national/karnataka/tension-over-temple-entry-by-dalits/article32505553.ece [ https://perma.cc/29N4-DX85 ]; Shivam Vij, In Allahpur, a Moment of Truth , Pulitzer Ctr . (Sept. 12, 2011), https://pulitzercenter.org/reporting/allahpur-moment-truth [ https://perma.cc/G3A4-LRKE ] (detailing different mosques based on caste identity). Surveying the news, the vast majority of reported incidents of caste discrimination in places of worship involve Hindu temples. Many of these are not even reported or openly identified, because they are unspoken but known norms that oppressed castes do not dare transgress. There is reason to believe that such caste discrimination is prevalent across South Asian religions, but that does not absolve Hindu practice. Instead, it seeks acknowledgment of the extent of the evil.

^ See, e.g ., Shamani Joshi, A Community in Gujarat Has Banned Inter-caste Marriage and Mobile Phones for Unmarried Girls , Vice (July 18, 2019, 3:02 AM), https://www.vice.com/en/article/evye5e/a-community-in-gujarat-india-has-banned-inter-caste-marriage-and-mobile-phones-for-unmarried-girls [ https://perma.cc/KCT9-CZK8 ].

^ See, e.g ., Couple, Who Had “Intercaste Marriage,” Killed , Hindustan Times (June 28, 2019, 12:07 AM), https://www.hindustantimes.com/india-news/couple-who-had-intercaste-marriage-killed/story-3cmlhKaraKeGMwoQ6ytxeL.html [ https://perma.cc/245B-D576 ]; Dalit Man Killed by In-Laws Over Inter-caste Marriage: Gujarat Cops , NDTV (July 9, 2019), https://www.ndtv.com/india-news/dalit-man-killed-by-in-laws-over-inter-caste-marriage-gujarat-cops-2066848 [ https://perma.cc/8YMQ-JD6R ].

^ See, e.g ., Hum. Rts. Watch , supra note 5, at 8 (stating that Dalits are often not allowed to enter the houses of so-called upper-caste people).

^ See, e.g ., Dalits, OBCs Forced to Bury Their Deceased by the Roadside , Sabrangindia (Mar. 21, 2020), https://sabrangindia.in/article/dalits-obcs-forced-bury-their-deceased-roadside [ https://perma.cc/V3GT-759U ]; Karal Marx, Denied Access to Crematorium, Dalits “Airdrop” Dead in Tamil Nadu , Times of India (Aug. 22, 2019, 2:51 PM), http://timesofindia.indiatimes.com/articleshow/70779016.cms [ https://perma.cc/7FKN-JBHF ]; Sanjay Pandey, Crematorium Turns “Casteist” as “Upper Caste” People Forbid Funeral of Dalit Woman in Uttar Pradesh , Deccan Herald (July 28, 2020, 4:58 PM), https://www.deccanherald.com/national/crematorium-turns-casteist-as-upper-caste-people-forbid-funeral-of-dalit-woman-in-uttar-pradesh-866699.html [ https://perma.cc/WC24-EGJ8 ]; Anand Mohan Sahay, Backward Muslims Protest Denial of Burial , Rediff India Abroad (Mar. 6, 2003, 2:58 AM), https://www.rediff.com/news/2003/mar/06bihar.htm [ https://perma.cc/85QM-F4YA ].

^ See, e.g ., Soutik Biswas, Hathras Case: Dalit Women Are Among the Most Oppressed in the World , BBC (Oct. 6, 2020), https://www.bbc.com/news/world-asia-india-54418513 [ https://perma.cc/WW9P-45XH ]; Vineet Khare, The Indian Dalit Man Killed for Eating in Front of Upper-Caste Men , BBC (May 20, 2019), https://www.bbc.com/news/world-asia-india-48265387 [ https://perma.cc/LR9D-T2QU ]; Nilanjana S. Roy, Viewpoint: India Must Stop Denying Caste and Gender Violence , BBC (June 11, 2014), https://www.bbc.com/news/world-asia-india-27774908 [ https://perma.cc/8VK3-VJN6 ]; Gautham Subramanyam, In India, Dalits Still Feel Bottom of the Caste Ladder , NBC News (Sept. 13, 2020, 4:30 AM), https://www.nbcnews.com/news/world/india-dalits-still-feel-bottom-caste-ladder-n1239846 [ https://perma.cc/2Z67-BPA5 ].

^ See, e.g ., Ilaiah Shepherd, supra note 44 (discussing lack of representation for Shudra communities in India); Bhola Paswan, Dalits and Women the Most Under-Represented in Parliament , The Record (Mar. 3, 2018), https://www.recordnepal.com/data/dalits-and-women-the-most-under-represented-in-parliament [ https://perma.cc/5C27-Q3D9 ].

^ In India, caste discrimination was explicitly addressed in the Constitution, authored by Bhimrao Ramji Ambedkar. See Bhimrao Ramji Ambedkar , Encyc. Britannica , https://www.britannica.com/biography/Bhimrao-Ramji-Ambedkar [ https://perma.cc/GX6S-AHJZ ]. Article 17 states that “‘Untouchability’ is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of ‘Untouchability’ shall be an offence punishable in accordance with law.” India Const. art. 17. These protections were further instantiated in legislation, including primarily in the Untouchability (Offences) Act of 1955, which prohibited and punished discrimination on the basis of untouchability in various arenas including religious institutions and commercial entities. Untouchable , Encyc. Britannica , https://www.britannica.com/topic/untouchable [ https://perma.cc/QLV2-VEW2 ]. In practice, enforcement of these protections has been difficult, especially in rural India. Id .; Kaivan Munshi, Why Does Caste Persist? , Indian Express (Nov. 2, 2013, 3:16 AM), https://indianexpress.com/article/opinion/columns/why-does-caste-persist [ https://perma.cc/KZW8-ENHE ] (“Given the segregation along caste lines that continues to characterise the Indian village, most social interactions also occur within the caste.”).

^ One set of “reservation” reforms in India was implemented nationally by the Mandal Commission, tasked with determining how to uplift “backward classes” — primarily through reservations and quotas. Sunday Story: Mandal Commission Report, 25 Years Later , Indian Express (Sept. 1, 2015, 12:54 AM), https://indianexpress.com/article/india/india-others/sunday-story-mandal-commission-report-25-years-later [ https://perma.cc/VM4S-MABP ]; see also E.J. Prior, Constitutional Fairness or Fraud on the Constitution? Compensatory Discrimination in India , 28 Case W. Rsrv. J. Int’l L . 63, 81 (1996) (providing further history on the Mandal Commission); Jagdishor Panday, More Reservation Quotas Sought for Ethnic Groups , Himalayan Times (Feb. 19, 2019, 8:56 AM), https://thehimalayantimes.com/nepal/more-reservation-quotas-sought-for-ethnic-groups [ https://perma.cc/WBW7-PSK2 ] (discussing reservation on the basis of ethnicity and caste in Nepal).

^ See, e.g ., Shashi Tharoor, Why India Needs a New Debate on Caste Quotas , BBC (Aug. 29, 2015), https://www.bbc.com/news/world-asia-india-34082770 [ https://perma.cc/H3U6-E3VN ] (“Inevitably, a backlash has set in, with members of the forward castes decrying the unfairness of affirmative action in perpetuity . . . .”).

^ See generally Caste in the United States , supra note 9; Gov. Equals. Off., Caste Discrimination and Harassment in Great Britain, Report , 2010/8 (2010), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/85524/caste-discrimination-summary.pdf [ https://perma.cc/8BPY-YMP5 ] (discussing prevalence of caste discrimination in Great Britain).

^ Babasaheb Ambedkar, 1 Writings and Speeches 5–6 (1979) (quoting Sheridhar V. Ketkar , I The History of Caste in India 4 (1909)).

^ See, e.g ., Caste in the United States , supra note 9, at 12.

^ Id . at 10–11.

^ See id . at 11.

^ Wilkerson , supra note 10, at 126. In United States v. Thind , 261 U.S. 204 (1923), the Court considered whether a “high caste Hindu” was “white” for purposes of naturalization under the Immigration Act of 1917, id . at 206, ultimately answering the question in the negative, id . at 215. In support of his position, Thind’s counsel stressed Thind’s common ancestral and linguistic ties to Europe, given his “Aryan” roots. John S.W. Park, Elusive Citizenship: Immigration, Asian Americans, and the Paradox of Civil Rights 124 (2004). Thind’s counsel further wrote: “The high-caste Hindu regards the aboriginal Indian Mongoloid in the same manner as the American regards the Negro, speaking from a matrimonial standpoint.” Id .

^ Caste in the United States , supra note 9, at 12.

^ Demographic Information , S. Asian Ams. Leading Together , https://saalt.org/south-asians-in-the-us/demographic-information [ https://perma.cc/4F8R-GKT3 ].

^ South Asians by the Numbers: Population in the U.S. Has Grown by 40% Since 2010 , S. Asian Ams. Leading Together (May 15, 2019), https://saalt.org/south-asians-by-the-numbers-population-in-the-u-s-has-grown-by-40-since-2010 [ https://perma.cc/XD5K-YRSD ].

^ Pub. L. No. 89-236, 79 Stat. 911 (codified as amended in scattered sections of 8 U.S.C.).

^ See Caste in the United States , supra note 9, at 13–14.

^ Id . at 13.

^ See id . at 13–14.

^ Pub. L. No. 101-649, 104 Stat. 4978 (codified as amended in scattered sections of 8 U.S.C. and at 29 U.S.C. § 2920).

^ See generally Muzaffar Chishti & Stephen Yale-Loehr, Migration Pol’y Inst., The Immigration Act of 1990: Unfinished Business a Quarter-Century Later (2016), https://www.migrationpolicy.org/sites/default/files/publications/1990-Act_2016_FINAL.pdf [ https://perma.cc/3WQS-SKYR ].

^ Caste in the United States , supra note 9, at 14.

^ Tinku Ray, The US Isn’t Safe from the Trauma of Caste Bias , The World (Mar. 8, 2019, 9:00 AM), https://www.pri.org/stories/2019-03-08/us-isn-t-safe-trauma-caste-bias [ https://perma.cc/7LUN-U49T ].

^ See, e.g ., Buck Gee & Denise Peck, Asian Americans Are the Least Likely Group in the U.S. to Be Promoted to Management , Harv. Bus. Rev . (May 31, 2018), https://hbr.org/2018/05/asian-americans-are-the-least-likely-group-in-the-u-s-to-be-promoted-to-management [ https://perma.cc/5RNM-T6YY ]; Matt Schiavenza, Silicon Valley’s Forgotten Minority , New Republic (Jan. 11, 2018), https://newrepublic.com/article/146587/silicon-valleys-forgotten-minority [ https://perma.cc/WTG6-EKBB ].

^ See, e.g ., Ray, supra note 74.

^ Caste in the United States , supra note 9, at 26–27, 39.

^ Id . at 20.

^ See, e.g ., Paresh Dave, Indian Immigrants Are Tech’s New Titans , L.A. Times (Aug. 11, 2015, 8:57 PM), https://www.latimes.com/business/la-fi-indians-in-tech-20150812-story.html [ https://perma.cc/NYB3-W9QC ]; Riaz Haq, Pakistani-Americans in Silicon Valley , S. Asia Inv. Rev . (May 4, 2014), https://www.southasiainvestor.com/2014/05/pakistani-americans-in-silicon-valley.html [ https://perma.cc/Y7XK-J6HS ] (“Silicon Valley is home to 12,000 to 15,000 Pakistani Americans.”); India’s Engineers and Its Caste System Thrive in Silicon Valley: Report , Am. Bazaar (Oct. 28, 2020, 7:08 PM), https://www.americanbazaaronline.com/2020/10/28/indias-engineers-and-its-caste-system-thrive-in-silicon-valley-report-442920 [ https://perma.cc/MPR8-CYPP ] (“The tech industry has grown increasingly dependent on Indian workers.”).

^ Tiku, supra note 8.

^ 42 U.S.C. § 2000e-2(a).

^ See Bostock v. Clayton County, 140 S. Ct. 1731, 1738–39 (2020).

^ Bostock , 140 S. Ct. at 1739.

^ Id . (citations omitted); see Michael Moore, Causation in the Law , Stan. Encyc. of Phil . (Oct. 3, 2019), https://plato.stanford.edu/entries/causation-law [ https://perma.cc/7UDF-5Q5S ] (discussing the but-for test or the sine qua non test).

^ See Bostock , 140 S. Ct. at 1749.

^ See infra section II.E, pp. 479–81.

^ See Koehler v. Infosys Techs. Ltd., 107 F. Supp. 3d 940, 949 (E.D. Wis. 2015) (recognizing South Asian heritage as a national origin); Sharma v. District of Colunbia, 65 F. Supp. 3d 108, 120 (D.D.C. 2014) (same).

^ U.S. Equal Emp. Opportunity Comm’n, National Origin Discrimination , https://www.eeoc.gov/national-origin-discrimination [ https://perma.cc/XK6N-MJU9 ]; see also 29 C.F.R. § 1606.1 (2020) (addressing the definition of national origin under Title VII and stating that “[t]he Commission defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group”).

^ Michael James & Adam Burgos, Race , Stan. Encyc. of Phil . (May 25, 2020), https://plato.stanford.edu/entries/race [ https://perma.cc/4ZZ2-YGWH ].

^ See generally Oliver C. Cox, Race and Caste: A Distinction , 50 Am. J. Soc . 360 (1945) (arguing that caste and race are distinct).

^ Ancestry , Merriam-Webster , https://www.merriam-webster.com/dictionary/ancestry [ https://perma.cc/7V5R-7B26 ] (defining “ancestry” as “line of descent”).

^ See supra note 34 and accompanying text.

^ U.S. Equal Emp. Opportunity Comm’n , EEOC-NVTA-2006-1, Questions and Answers About Race and Color Discrimination in Employment (2006) https://www.eeoc.gov/laws/guidance/questions-and-answers-about-race-and-color-discrimination-employment [ https://perma.cc/R6XW-BTZ6 ].

^ 481 U.S. 604 (1987).

^ Id . at 606.

^ Id . (quoting Al-Khazraji v. St. Francis Coll., 784 F.2d 505, 517 (3d Cir. 1986)).

^ Id . at 607.

^ Id . at 613 (quoting Al-Khazraji , 784 F.2d at 517).

^ Id .; see also Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987) (holding that a claim for discrimination based on Jewish heritage is cognizable under 42 U.S.C. § 1981, for similar reasons).

^ Al-Khazraji , 481 U.S. at 610 n.4. See also Khiara M. Bridges, The Dangerous Law of Biological Race , 82 Fordham L. Rev . 21, 52–57 (2013) (same); Chinyere Ezie, Deconstructing the Body: Transgender and Intersex Identities and Sex Discrimination — The Need for Strict Scrutiny , 20 Colum. J. Gender & L . 141, 178–80 (2011) (embracing the Al-Khazraji Court’s conception of race).

^ Though the Court acknowledged the limits of biological and genetic conceptions of race, if caste can be shown to pick out “ethnic[]” and “physiognomically distinctive” traits, there may be a strong argument that caste discrimination qualifies as racial discrimination on that alternative basis.

^ One might ask whether the EEOC’s interpretation holds any weight. Even with Chevron deference, we don’t think that answers the question definitively. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (holding that courts give deference to an agency’s interpretations of an abmiguous statute, if the agency’s interpretation is a permissible construction of the statute). Here, the Court may not even find the term “race” to be ambiguous for Chevron deference to be applicable.

^ U.S. Equal Emp. Opportunity Comm’n , supra note 98.

^ See generally S. Chandrasekhar, Caste, Class, and Color in India , 62 Sci. Monthly 151 (1946) (arguing against the proposition that there is a strong relationship between caste and color).

^ See, e.g ., Ayyar & Khandare, supra note 25, at 71; Skin Colour Tied to Caste System, Says Study , Times of India (Nov. 21, 2016), https://timesofindia.indiatimes.com/articleshow/55532665.cms [ https://perma.cc/25X3-M8HX ].

^ At the same time, discrimination on the basis of skin color is prevalent in South Asia and among South Asian populations. See generally Taunya Lovell Banks, C olorism Among South Asians: Title VII and Skin Tone Discrimination , 14 Wash. U. Glob. Stud. L. Rev . 665 (2015) (describing colorism in India and the South Asian diaspora and examining its role in employment discrimination claims filed by South Asians). Thus, certain kinds of discriminatory behavior may entangle both caste and skin color.

^ Monier-Williams, A Sanskrit-English Dictionary 924 (1899).

^ Varna , Encyc. Britannica (Mar. 7, 2021), https://www.britannica.com/topic/varna-Hinduism [ https://perma.cc/WP5J-TAZG ] (stating that the idea that varna referenced skin color has been discredited); Neha Mishra, India and Colorism: The Finer Nuances , 14 Wash. U. Glob. Stud. L. Rev . 725, 726 n.6 (2015).

^ Gulitz v. DiBartolo, No. 08-CV-2388, 2010 WL 11712777, at *5 (S.D.N.Y. July 13, 2010) (“What is relevant is that Plaintiff identifies himself as ‘of Jewish heritage’ — an assertion fully supported by the fact that his father is Jewish. That Plaintiff does not practice the Jewish religion does not prevent him from being of Jewish heritage — that is, a descendant of those who did so practice — or from being discriminated against on account of the religion of his forbears.”); Sasannejad v. Univ. of Rochester, 329 F. Supp. 2d 385, 391 (W.D.N.Y. 2004) (recognizing potential religious discrimination claim of a nonpracticing Iranian Muslim, in part because of the interrelationship between national-origin discrimination and religious discrimination).

^ For example, Wilkerson describes how access to religious institutions is a core feature of caste discrimination across caste systems: “Untouchables were not allowed inside Hindu temples . . . . [They] were prohibited from learning Sanskrit and sacred texts.” Wilkerson , supra note 10, at 128.

^ Additionally, it is not easy for individuals to simply withdraw or ignore their religious community — that can come with serious costs and perils. Moreover, as we have seen, moving to another religious community may not remove the mark of caste.

^ See supra note 117 and accompanying text.

^ See Sasannejad , 329 F. Supp. 2d at 391.

^ This Essay emphasizes the cross-religious nature of caste, in order to recognize that caste discrimination can take many forms and is not necessarily confined to those who are (presently) Hindu. At the same time, in particular cases, it may be more salient to recognize the nature of caste discrimination based on the religious identity of those party to the suit. That is, for example, if the employer and employee are both Hindu, then one can appeal to the form of caste discrimination between and among Hindus to strengthen the case of religious discrimination under Title VII.

^ See supra note 33 and accompanying text.

^ Krithika Varagur, Converting to Buddhism as a Form of Political Protest , The Atlantic (Apr. 11, 2018), https://www.theatlantic.com/international/archive/2018/04/dalit-buddhism-conversion-india-modi/557570 [ https://perma.cc/5G85-R94D ].

^ In any situation where but-for causation isn’t satisfied, we will likely be able to satisfy the conceptual causation test — because the concept of Dalit Buddhist identity depends on the concept of Dalit ancestry.

^ Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics , 1989 U. Chi. Legal F . 139, 140.

^ In some cases, as Crenshaw observed, this may be difficult because of the size of the class, especially if the claim is pursued on a disparate impact theory with use of empirical and statistical evidence. Id . at 143–46 (discussing Moore v. Hughes Helicopter, Inc., 708 F.2d 475 (9th Cir. 1983)). We share Crenshaw’s concerns on this front. We must continue to challenge how we recognize discrimination, beyond the formal models of causation in the law.

^ If they are not treated more severely, they may be able to pursue their claim separately under a disjunctive identity — that is, being Dalit or Buddhist. See Krishnamurthi & Salib, supra note 87 (discussing such examples and showing they are cognizable under Title VII).

^ In the United Kingdom, such legislation was floated but ultimately rejected, due to divides in the South Asian community as to the prevalence of caste discrimination. Prasun Sonwalkar, UK Government Decides Not to Enact Law on Caste Discrimination Among Indians, Community Divided , Hindustan Times (July 24, 2018, 12:22 PM), https://www.hindustantimes.com/world-news/uk-government-decides-not-to-enact-law-on-caste-discrimination-among-indians/story-HLDMdbZQhrNtoo4NKhxZOO.html [ https://perma.cc/4C9Q-AP98 ]. But of course, if caste discrimination actually doesn’t exist, then making caste discrimination unlawful should do little harm. Indeed, concerns of frivolous lawsuits are not new in Title VII; Title VII allows fee shifting for prevailing defendants “upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. Equal Emp. Opportunity Comm’n, 434 U.S. 412, 421 (1978); see also 42 U.S.C. § 2000e-5(k).

^ See supra note 107 for the discussion of understanding race discrimination as a type of caste discrimination.

• Civil Rights
• Discrimination
• Employment Law

June 20, 2021

Adapting Civil Procedure 

54 Pages Posted: 12 Aug 2024

Caroline Cox

Vanderbilt Law School Energy, Environment & Land Use Program

Date Written: February 10, 2023

Proposals to amend the Federal Rules of Civil Procedure are typically modest in scope or seek to address changing technology. However, recent major hurricanes and the COVID-19 pandemic have pushed the Judicial Conference to consider how the Rules should work in emergencies. The resulting Rule 87—which officially became effective on December 1, 2023—effectively creates alternative versions of select rules when the Judicial Conference makes a finding of an emergency within a judicial district. Although the proposed rule is a step in the right direction, continued attention to the challenges civil litigation faces in the climate change era is necessary. This Article examines the vulnerability of the Federal Rules of Civil Procedure to climate change and offers a framework for continued adaptation of the Rules to an uncertain world. The Federal Rules, like many areas of the law, rest on assumptions of societal and climatic stability. Climate change threatens this fundamental “stationarity.” Therefore, this Article takes the first steps in an adaptation analysis for the Federal Rules, beginning with the core procedural values that an adaptation plan should protect and an overview of existing stressors to those values. The Article then provides an analysis of how climate change disasters will further undermine efforts to achieve those procedural values. Using natural disasters of the last fifteen years as case studies, the Article evaluates how the growing intensity, frequency, and unpredictability of climate change disasters will exacerbate existing civil procedure stressors and undermine its stationarity assumptions. The Article concludes with recommendations for both a better approach to reforming civil procedure and some specifications courts and the Judicial Conference should take to address climate disasters. Importing the adaptive management theory to the Judicial Conference will allow the Federal Rules to capitalize on their preexisting resilience and adaptive capacity without risking the widespread use of maladaptive strategies in civil cases after climate disasters. Given the acceleration of climate change and the ever-present need of society's most vulnerable populations to use the courts to secure benefits and protect their rights, such an approach to adapting civil procedure is critical for achieving the Federal Rules' underlying aims.

Keywords: climate change, civil procedure, climate change adaptation, Federal Rules of Civil Procedure, stationarity, federal courts, procedural justice, natural disasters, environmetal law

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Vanderbilt law school energy, environment & land use program ( email ).

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Trump and Allies Forge Plans to Increase Presidential Power in 2025

The former president and his backers aim to strengthen the power of the White House and limit the independence of federal agencies.

Donald J. Trump intends to bring independent regulatory agencies under direct presidential control. Credit... Doug Mills/The New York Times

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By Jonathan Swan Charlie Savage and Maggie Haberman

• Published July 17, 2023 Updated July 18, 2023

Donald J. Trump and his allies are planning a sweeping expansion of presidential power over the machinery of government if voters return him to the White House in 2025, reshaping the structure of the executive branch to concentrate far greater authority directly in his hands.

Their plans to centralize more power in the Oval Office stretch far beyond the former president’s recent remarks that he would order a criminal investigation into his political rival, President Biden, signaling his intent to end the post-Watergate norm of Justice Department independence from White House political control.

Mr. Trump and his associates have a broader goal: to alter the balance of power by increasing the president’s authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House, according to a review of his campaign policy proposals and interviews with people close to him.

Mr. Trump intends to bring independent agencies — like the Federal Communications Commission, which makes and enforces rules for television and internet companies, and the Federal Trade Commission, which enforces various antitrust and other consumer protection rules against businesses — under direct presidential control.

He wants to revive the practice of “impounding” funds, refusing to spend money Congress has appropriated for programs a president doesn’t like — a tactic that lawmakers banned under President Richard Nixon.

He intends to strip employment protections from tens of thousands of career civil servants, making it easier to replace them if they are deemed obstacles to his agenda. And he plans to scour the intelligence agencies, the State Department and the defense bureaucracies to remove officials he has vilified as “the sick political class that hates our country.”

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