Part I of this article will situate the fire and the subsequent reforms in the social movements of the time, at the intersection of the labor movement and other progressive causes championed by women. It will also describe why the success of early protective labor legislation depended, in part, on gender. Part II will describe the shift in law from protecting women workers as workers to protecting women workers as women, describing the rise of legislation banning sex discrimination in the workplace, and the tensions in that legislation caused by competing visions of sex equality. Finally, Part III will draw on lessons about enforcement of gender-protective legislation from the era of the fire to today. It will conclude that legislation can serve as a positive first step but, without broad consensus supporting it, it tends to be under-enforced or wholly unenforced and therefore not effective at achieving real or lasting social change. I end with a

brief application of these lessons to the Domestic Workers Bill of Rights, New York's recent extension of protections to home care workers, the overwhelming majority of whom are women and many of whom are immigrants, just like the labor force at the Triangle Shirtwaist Factory in 1911.

To explore how we might construct federal agencies with greater adjudicatory power, I will use the regulation of equal employment opportunity as a case study. This article analyzes the limits article III may place on the structure of adjudicating agencies and ways those limits might be overcome. It then explains the weaknesses of the current system to enforce the antidiscrimination laws and outlines a proposal for what an adjudicative agency designed to maximize the benefits from an agency perspective might look like.

The commitment to racial equality is very present in the public consciousness and yet still contested enough that there are gaps in consensus on the content of the norm. Part of the reason for this lack of consensus is that the issue of race discrimination in employment has not been in the forefront of public debate the way it had been in earlier years. At the end of its most recent term, the United States Supreme Court issued its first decision in decades addressing the content of the norm against race discrimination in employment in Ricci v. DeStefano. The Court took a decidedly formalist turn, instituting a color-blind standard to define discrimination under Title VII at least in some circumstances. This article analyzes that decision.

Despite what many saw as revolutionary shifts, two doctrines that provide great power to the federal government seem to have survived so far with little or no change: Congress's power under the Spending Clause to spur states to engage or refrain from engaging in certain conduct; and the federal courts' power under Ex parte Young to hear private parties' suits seeking to force state officials to follow federal law, including laws created under the Spending Clause. The combination of these two doctrines provides for significant federal power, the extent of which makes the doctrine's continued survival in the era of New Federalism surprising.

This article explores the extent of power the federal courts and Congress can exercise over the states through the use of those combined doctrines and suggests reasons the Court has not removed that power. The Court likely sees this expression of federal power as a check on the states, necessary to ensure the supremacy of federal law, maximize the efficient use of both federal and state power, and maximize accountability and the rule of law for both the states and the federal government.

Based on this historical evidence, I argue that the greater the power of the legal structure used, the less likely the result will produce substantive change, because high-level legal structures are constrained by the dominant culture. Without some cultural change, lawmaking through courts is not effective and can perpetuate oppression instead. Legislation can be more effective, but is subject to similar limits of culture in its enactment, interpretation, and enforcement. Paradoxically, the broader the legislation in terms of subject matter and the higher the jurisdiction enacting the legislation, the less effective it will be.

Because of these paradoxes of power, The temptation to focus on the most powerful institution, which can offer the staunchest protection and the broadest sweep, in the United States, the Supreme Court and the Constitution, often wins out. This paper seeks to reveal the tradeoff that decision makes.

This convergence has been troubling to many academics and practitioners for a number of reasons both practical and jurisprudential. But there is another reason that these cases should be alarming. They call into question the power of Congress to enact lasting legislation regulating the states’ treatment of their citizens. They also denigrate the normative principles of national citizenship and equality that the Fourteenth Amendment added to our core constitutional values.

For background, Congress can abrogate states’ immunity from suit in federal court only under the enforcement clause of the Fourteenth Amendment. Legislation under the Fourteenth Amendment can be broader than the amendment itself and be valid. Congress can enact legislation under the Fourteenth Amendment that prohibits some kinds of constitutional conduct if the prohibition works to remedy past discrimination or to deter future violations.

While remedy and deterrence would appear to give Congress significant power to enact legislation, the Court has focused on remedy to the exclusion of deterrence. In Board of Trustees v. Garrett, for example, the Court scrutinized the legislative record to determine whether there was an existing constitutional evil (rather than a potential constitutional evil) that Congress could have addressed through the legislation it enacted. If a statute is a valid exercise of the Fourteenth Amendment only if it addresses an existing constitutional evil, what happens to that validity over time as constitutional evil ceases to exist and its past existence becomes more distant? Focusing on remedy alone leads to a result in which the validity of legislation under the Fourteenth Amendment may expire once enough time has passed during which states are actually deterred from discriminating.

Part one of this article briefly describes the state-immunity jurisprudence of the Court. Part two focuses on the Court’s treatment of legislation passed under the Fourteenth Amendment. Part three describes the convergence of the two lines of cases and the problems this convergence poses for Congress as it considers ways to promote the normative principles of national citizenship and equality. Finally, Part four suggests ways in which the Court could consider deterrence and prevention in its analysis.

I draw on civil rights history to trace the development of our legal approach, psychological research on cognitive bias to discuss how we discriminate, and traditional legal analysis to demonstrate how far afield we have gotten from the original principles. I hope that my analysis will contribute to a more straightforward approach to evaluating evidence in discrimination cases, which will make it easier for both plaintiffs and defendants to present their cases. Additionally, it will offer the parties an opportunity to present evidence and to argue about how discrimination should be defined. This opportunity would allow judges and members of the public to better understand the complex ways in which discrimination continues to operate in our society. It will also promote debate on a subject that has remained hidden because the evidentiary test does not address it. As long as that issue remains hidden in discrimination cases, judges and juries can employ their own definitions, which will forever escape public scrutiny.