Discrimination on the basis of sex in employment is illegal--usually. In cases in which employers contend that sex-based hiring is necessary to protect the privacy interests of their customer, however, and in cases in which employers contend that sex-based hiring is necessary to provide a particular type of sexual titillation for their customers, courts sometimes do allow employers to discriminate. Courts say that they allow sex discrimination in employment when it is necessary to preserve the "essence of the business." This Article shows, however, that there is no plausible conception of business "essence" that can explain and make sense of the existing case law. The Article therefore looks beyond the courts' rhetoric to explain and defend why courts distinguish in the ways they do between permissible and impermissible sex discrimination in employment.

By default, the courts are inventing health law. The law governing the American health system arises from an unruly mix of statutes, regulations, and judge-crafted doctrines conceived, in the main, without medical care in mind. Courts are ill-equipped to put order to this chaos, and until recently they have been disinclined to try. But political gridlock and popular ire over managed care have pushed them into the breach, and the Supreme Court has become a proactive health policy player. How might judges make sense of health law's disparate doctrinal standards? Scholars from diverse ideological starting points have converged toward a single answer: the law should look to deploy medical resources in a systematically rational manner, so as to maximize the benefits that every dollar buys. This answer bases the orderly development of health care law upon our ability to reach stable understandings, in myriad circumstances, of what welfare maximization requires. In this Article, I contend that this goal is not achievable. Scientific ignorance, cognitive limitations, and normative disagreements yield shifting, incomplete, and contradictory understandings of social welfare in the health sphere. The chaotic state of health care law today reflects this unruliness. In making systemic welfare maximization the lodestar for health law, we risk falling so far short of aspirations for reasoned decision making as to invite disillusion about the possibilities for any sort of rationality in this field. Accordingly, I urge that we define health law's aims more modestly, based on acknowledgement that its rationality is discontinuous across substantive contexts and changeable with time. This concession to human limits, I argue, opens the way to health policy that mediates wisely between our desire for public action to maximize the well being of the many and our intimate wishes to be treated noninstrumentally, as separate ends. I conclude with an effort to identify the goals of health law, so constructed, should pursue and to suggest how a strategy of accommodation among these goals might apply to a variety of legal controversies.

Congress intended the Americans with Disabilities Act ("ADA") to provide strong standards for addressing and eliminating discrimination against individuals with disabilities. Many commentators have concluded, however, that the federal courts are undermining the goals of the ADA by too narrowly construing membership in the statute's protected class. One example of this trend is courts' hostile treatment of ADA plaintiffs who do not use medications or devices that might alleviate their impairments ("nonmitigating plaintiffs"). Numerous district and appellate decisions have held or suggested that nonmitigating plaintiffs are not protected by the ADA. In addition, some commentators have proposed that courts should evaluate the reasonableness of a plaintiff's decision not to use mitigating measures; they argues that it is unfair to burden an employer with the cost of accommodating a disability that continues to exist only because an employee unreasonably refuses to mitigate it. Contrary to the views of these courts and commentators, however, this Comment will show that nonmitigating plaintiffs are entitled to ADA protection from employment discrimination. It argues that the statute's language, history, and structure, as well as Supreme Court precedent, demonstrate that courts cannot deny ADA protection based on a plaintiff's nonuse of available mitigating measures. It also presents several considerations that weigh against any future congressional enactment that would tie ADA protection to the reasonableness of a plaintiff's decision not to mitigate an impairment.

In recent years, numerous medical studies and reports have documented startling disparities between the health status of African Americans and White Americans. The literature is replete with evidence that one of the main causes of these racial disparities is the different treatment of patients of different racial groups. This Comment addresses the possibility that implicit cognitive bias, in the form of implicit attitudes and stereotypes, significantly contributes to these racial disparities in medical treatment. Finding existing legal frameworks inadequate to address current disparities in health care, this Comment recommends avenues for the reworking of Title VI of the Civil Rights Act of 1964. Specifically, it suggests that disparate-treatment provisions that encompass claims arising from unintentional discrimination should be incorporated into Title VI, and it offers the employment law frameworks of Title VII and the Age Discrimination in Employment Act as models for such reform.

Parents have long been able to influence the genetic composition of their children through their choice of a reproductive partner, if only very approximately. They are, however, increasingly able to determine the genetic make-up of their children in other, more precise ways, such as by selecting a particular gamete or embryo or by genetically modifying an embryo prior to artificial implantation. This Article discusses parents' obligations to their children and other members of the community stemming from their children's genes. In a just state, it argues, parents would be responsible for redressing any genetic disadvantage their children suffer as a result of parents' voluntary actions. Within the context of a liberal egalitarian account of distributive justice, this responsibility might most fairly be discharged through a compulsory insurance plan that provides compensation to genetically disadvantaged children when they might have had non-disadvantaged children instead would in some circumstances incur greater liability, because they could not fairly push the cost of their choices off on other members of the insurance pool. The Article also asks whether parents wrong a child by allowing it to be born with a genetic impairment when, had they taken steps to remove the impairment, the unimpaired child they had would have been a different person from the genetically disadvantaged child because the better-off child's capacities and experiences differed considerably from those that the disadvantaged child would have had. Contrary to many people's moral intuitions, the Article argues that parents do not wrong such a child. Nevertheless, parents remain morally obligated to bear any added costs occasioned by the child's impairment. Any other approach would allow them unjustly to shift the burden of their choices to other parents. Finally, the Article takes up the much debated question of whether parents harm a child by allowing it to be born with a life not worth living when they could have prevented its birth. It suggests that the answer to this question should be irrelevant to parents' legal liability. Acting on behalf of the parental insurance pool, the state may nonetheless adopt a variety of measures to help potential parents avoid giving birth to such children, which one can assume virtually all would prefer.

In its 1997 decision, Kansas v. Hendricks, the U.S. Supreme Court radically changed the face of civil commitment. In finding the Kansas Sexually Violent Predators Act constitutional, the Court liberalized the first constitutional requirement for involuntary commitment from "mental illness" to a much broader "mental abnormality" standard, without correspondingly restricting the second requirement of dangerousness. The decision essentially authorizes states to civilly commit a broad range of individuals without sufficient due process protections. This Comment explores the possibilities for expansion of civil commitment in the wake of Hendricks. It argues that the holding was unjustifiably broad, focusing in particular on the potential danger facing substance abusers. In conclusion, it offers several suggestions for mitigating the potential misuse of this dangerous precedent.

The Supreme Court's recent decisions in United States v. Lopez and United States v. Morrison articulate a vision of federalism under which Congress's regulatory authority under the Commerce Clause is severely limited in favor of returning traditional areas of state concern, particularly criminal law enforcement, to local or state control. The Court's decisions in these cases coincide with ballot initiatives legalizing the medical use of marijuana garnering a majority of the vote in California, Arizona, Alaska, Colorado, Nevada, Oregon, Washington, Maine, and Washington D.C. Those who use marijuana for medical purposes under sanction of state law, however, still face the threat of federal prosecution under the Controlled Substances Act. Medical marijuana proponents have traditionally, and unsuccessfully, contested federal prosecution using individual rights arguments under theories of equal protection or substantive due process. This Comment argues that after Lopez and Morrison, the federal government's authority to regulate intrastate use of marijuana for medicinal purposes is not the foregone conclusion it once was. The author suggests that proponents of medical marijuana use should invoke the federalism arguments of Lopez and Morrison and argue for state legislative independence from the federal government on this issue.

Federal courts have split on the question of the applicability of the Americans with Disabilities Act to insurance coverage decisions that insurance companies make on the basis of disability; they have similarly split on other issues pertaining to the scope of that Act's application. In deciding whether to read the Act as prohibiting discrimination in insurance decisions that are often crucial in the lives of people with disabilities, courts have faced two problems. First, where it prohibits discrimination in the equal enjoyment of the goods and services of places of public accommodation, the Act's area of concern may be limited to the ability of people with disabilities to gain physical access to facilities; or that area may extend to all forms of disability-based discrimination in the provision of goods and services. This Comment argues that the language and legislative history of the Act are consistent only with the latter view. Second, the provision limiting the Act's applicability to insurance may create an exemption for all insurance decisions; or it may protect only the ability of an insurance company to make an insurance decision to the disadvantage of an insured with a disability where actuarial data support the decision. This comment argues that the ambiguous language of the limiting provision should be resolved in favor of the latter view. Legislative history and the broader background of the history of insurance discrimination law support this resolution. Consequently, the Act should be interpreted as prohibiting disability-based discrimination by insurance companies in selling insurance policies and as defining discrimination as making disability-based insurance decisions without the support of actuarial data. By accepting this interpretation, courts can help stop the pattern of judicial narrowing of the Act's application through inappropriately restrictive statutory construction.

In 1998, the FDA approved the first large-scale human trials of a candidate AIDS vaccine in our nation's history. While the legal issues raised by these trials are manifold, the academic literature has focused almost exclusively on the potential for mass tort liability and the resulting hesitancy of biotech and pharmaceutical firms to enter the field. This Comment argues that another issue of vital concern demands attention: the potential for social harm to the human subjects of AIDS vaccine trials. After providing an overview of the current epidemiology of HIV/AIDS and explaining why a safe, effective AIDS vaccine represents the best way to control the pandemic, this Comment analyzes the scientific and social obstacles to production of such a vaccine. In order to know whether a candidate AIDS vaccine is truly effective, researchers will have to test the product in HIV-negative volunteers at high risk of infection. Since these volunteers may subsequently test positive for HIV on standard blood tests, they will be vulnerable to discrimination on that basis in such areas as employment, insurance, immigration, and incarceration. Moreover, by participating in vaccine trials, volunteers will be marking themselves as people at high risk of HIV infection, another basis for disparate treatment. Researchers have suggested that federal disability discrimination law may afford protection against research-related social harms. Through close analysis of the Americans with Disabilities Act of 1990 and the Supreme Court's decision in Bragdon v. Abbott, this Comment demonstrates that optimistic reliance on federal disability law is misplaced. The unique issues raised by domestic AIDS vaccine trials must be addressed in their own right. The Comment accordingly concludes with a broad range of legislative and regulatory proposals to protect trial participants and advance the AIDS vaccine research agenda.