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Public Law & Legal Theory


Starting from Justice Ginsburg’s 2017 opinion in Sessions v. Morales-Santana, this essay explores the choice between ‘leveling up’ and ‘leveling down’ as a response to an unlawful difference in the legal treatment of two distinct groups. That problem can arise in the Equal Protection, Free Speech, Free Exercise, and Dormant Commerce Clause contexts. My analysis starts by defining the idea of a ‘leveling down’ disposition in the context of a constitutional equality claim. After exploring analogies in other areas of constitutional law, I turn to two alternative ways of analyzing and solving the leveling-down disposition—one through the lens of Article III standing doctrine, and the other by reference to severability doctrine—to suggest that both are inadequate. I offer instead two ways in which a leveling down disposition can be derived from a constitutional theory of equality. The essay concludes by flagging an ‘exit’ from the seemingly dichotomous choice between leveling up and leveling down.



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