Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) & Avihay Dorfman (Tel Aviv University - Buchmann Faculty of Law) have posted The Tort of Discrimination on SSRN. Here is the abstract:
This Essay integrates two ambitions. It seeks to both lay out new theoretical foundations for antidiscrimination law, and demonstrate the practical significance of these foundations to tackling instances of wrongful discrimination beyond the reach of the current legal regime. Concerning theory, we articulate an account of wrongful discrimination grounded in private law’s basic commitment to reciprocal respect for the self-determination and substantive equality of private persons. Concerning practice, we argue that antidiscrimination law is currently at its pre-MacPherson v. Buick stage, namely, consisting in isolated pockets of liability for discriminatory behavior. The gaps left by its existing pockets are indefensible as they necessarily undermine people’s fundamental right to be treated equally by holders of normative powers, such as proprietors, employers, and lessors. Nothing short of a full-blown tort of discrimination can suffice for antidiscrimination law to have its own MacPherson moment. The theoretical account we develop provides the necessary framework for embarking on this crucial endeavor: a clear articulation of the normative foundations of such tort as an integral, and indispensable, part of private law in a liberal society. Drawing on existing tort doctrines, we identify important legal tools that can be utilized for prescribing the proper elements - duty, breach, injury, causation, and remedy—of a novel, generic tort of discrimination.
Recommended.
