Much public commentary has asserted or implied that the American criminal-justice system unjustly privileges individuals who commit crimes in corporations and financial markets. This Article demonstrates that this claim is not accurate—at least not in the ways commonly believed.
Sex discrimination law has not kept pace with the lived experience of discrimination. In the early years of Title VII of the Civil Rights Act of 1964, courts settled on an idea of what sex discrimination looks like—formal practices that exclude employees based on their group membership. The problem is that sex discrimination has become highly individualized.
Passed as part of the Armed Career Criminal Act, 18 U.S.C. § 924(e) subjects felons in possession of firearms to a strict mandatory minimum sentence if the offenders have three prior state or federal convictions that qualify as serious drug offenses or violent felonies. A crime qualifies as a violent felony under the residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), if it is one of the enumerated offenses of “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”