San Diego Law Review

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I find Yuracko's inquiry quite intriguing, but I have doubts about the central thesis. My aim, in the discussion that follows, is to press Yuracko on two fronts, one methodological, the other substantive. As concerns substance, I shall say a bit as this commentary progresses about why Yuracko would need much more support to make good on her claim that an implicit perfectionism explains decisional antidiscrimination law. My chief interest, however, lies with certain questions as to what methodology she means to follow in her efforts to develop a more complete theory of employment discrimination law. Yuracko's approach is one that seems to me to be quite common in legal scholarship, at least in legal scholarship with more theoretical ambitions. For reasons that I shall offer shortly, I find the approach puzzling and problematic. I want to be clear, however, that in pressing methodological questions, my aim is not so much to pose a problem for Yuracko, who understandably adopts what seems the usual approach of scholars in her field. Rather, I mean to point out how and why, in my view, legal theorists need to pay far greater attention to methodology than they generally have. As for Yuracko, I greatly admire her efforts, in this article and elsewhere, to tackle complex questions about the theoretical unity and underpinnings of employment discrimination law. For that very reason, I want to urge her to adopt an approach better suited to exploring theoretical issues and to supporting her most central ideas.

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