Of Pigeonholes and Principles: A Reconsideration of Discrimination Law
Bibliographic record
Abstract
The common law has never developed a cause of action for discrimination. Instead, the legislatures have stepped in. This article explores not whether there should be a cause of action for discrimination at common law, but whether our thinking about discrimination from a legal point of view would benefit from drawing upon common law methodology. We can contrast two methodologies for the design and development over time of legal norms: the top-down model of the comprehensive code designed to bring to life a grand theory about the norms regulating human interaction, and the bottom-up model of case-by-case analysis aiming toward the development of a set of principles explaining and justifying individual decisions. Each has its place, but the latter is perhaps better suited to creating and changing norms in the discrimination law area. However, the abdication of responsibility by the common law has led to the legislatures intervening in their typical top-down style. Lacking a grand theory, the resulting statutory rules have something of the quality of arbitrary pigeonholes into which complainants must fit their fact situation or fail. Three issues are examined, revealing the detrimental impact of the pigeonhole-like quality that current codes have taken on over the course of their development. The first two concern the difficulties encountered in determining which attributes come within the protection of the law through being designated as prohibited grounds of discrimination; the last is a re-examination of whether discrimination is confined to differential treatment motivated by prejudice or encompasses causing adverse effects upon vulnerable groups and individuals. The article makes some first steps towards showing how discrimination law could develop differently if we were to adopt something more like the common law method of norm creation and change.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.032 | 0.038 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.002 | 0.002 |
| Bibliometrics | 0.003 | 0.001 |
| Science and technology studies | 0.010 | 0.114 |
| Scholarly communication | 0.013 | 0.030 |
| Open science | 0.005 | 0.010 |
| Research integrity | 0.015 | 0.030 |
| Insufficient payload (model declined to judge) | 0.003 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".