With neither statutory proscriptions to uphold nor a clear statement of what they
were trying to do, federal judges in the United States have deemed stereotyping
actionable at law. The judges who built this cause of action moved fast, as
“stereotype” in its modern sense is relatively new. What explains stereotyping as a
legal wrong? Exploring the concept of a stereotype as presented by its coiner, the
public intellectual Walter Lippmann, this Article argues that what’s wrong with
stereotyping is unjustifiable constraint.
An answer to the question of what’s wrong delivers other answers as well. This
Article shows how current American law and legal institutions exacerbate the
problem of stereotyping as well as lessen it. It says which stereotypes fall outside
the ken of legal remediation. It distinguishes stereotyping from discrimination. It
locates the constitutional law of stereotyping. In its last Part, using examples, it
tells how law and legal institutions repair this wrong.