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February 19, 2012


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Brando Simeo Starkey

Much appreciation for this post! ...although this positive reinforcement for procrastinating can’t be good for me.

I finished that article 2 years ago around this time I believe. I’m writing a series of articles (just 2 left) that I hope to turn into a book (The Intent Doctrine) where I unearth the historical origins of equal protection’s requirement that claimants prove intent, argue why it’s a bad standard and then offer a workable solution (it’s more complicated but that’s the general gist of if). When I wrote that article, I had no idea what I wanted the solution to be but I knew that some self-described Originalists would criticize any effort to move away from a motive-centered Equal Protection Clause. So I wanted to cut off a counter argument to what my eventual solution would be and argue that if Originalists (specifically Thomas and Scalia) are so concerned with discrimination to support a colorblind Constitution, then they should be even more concerned that requiring claimants to prove intent hurts our ability to stamp out discrimination.

Now I’ve already devised my solution and I am assessing how it could force police departments to change discriminatory stop and frisk tactics. Specifically, I’m arguing that my new solution could help the class action plaintiffs in Floyd v City of New York. That article will be done and on SSRN in a few days, I hope…

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