Change of the Mandatary Retirement Age Based on the Constitutional Equal Protection

Different standards for the elderly from the other ages are adopted for the termination of employment contract in Korean workplaces. Labor laws stipulate a mandatory retirement age to protect employees. However, many employees are laid off in spite of legal regulations. External factors should be considered for deciding the existence of age discrimination at work. Especially employees' recognition of age equality at workplaces and the people's general understanding of age discrimination should be reflected to execute anti-discrimination policy. This paper presents the people's intention to remain at work that is higher than the current mandatory retirement age, 60 based on a survey. According to the comparison between the American survey and the Korean one, workers' intention to work as long as possible looks universal. This paper suggests the result of the research should be adopted for the political and judicial decisions for labor based on the constitutional equal protection.

Why and When Irrational and Arbitrary Distinctions are Discrimination

While some scholars explain why arguments that limit the scope of discrimination to the classic grounds of race, gender, and so on, are not convincing, none of them establishes a positive argument as to why and when we should consider irrelevant distinctions that are not based on the classic grounds as discrimination.
This paper explains why and when arbitrary or irrational distinctions, on their own, constitute discrimination. In a nutshell, the argument is that irrational and arbitrary distinctions are discriminatory, even when they do not relate to classic grounds. This is because, unlike rational distinctions, such as distinctions that are based on reliable proxies, irrational and arbitrary distinctions do not try to treat individuals as autonomous human beings. They ultimately disregard individuals' relevant needs and capacities. Irrational and arbitrary distinctions thus fail to treat individuals with equal concern and respect.

Student Ability, Tracking and Discrimination

Over the years, the concept of discrimination and the legal doctrines that protect it, have widened and additional classifications and actions have been recognized as constituting discrimination. This paper explores yet another new category, student ability, and argues that tracking students according to their ability is discriminatory. The analysis in the paper is both philosophical and legal. The philosophical examination applies the different approaches concerning the wrongness of discrimination to the case of ability. The paper then compares case law concerning ability grouping in the United States, Israel and the European Court of Human Rights. While courts in the US and Israel have been reluctant to recognize ability grouping as discriminatory, the ECtHR has struck down ability grouping practices that result in overrepresentation of children from the Roma community in lower tracks and in special education. The paper argues that this approach should be endorsed.

Constitutional courts, new claims of equality and the evolution of traditional standards of review

Constitutional courts are asked to address new claims of equality. In the U.S., apprehension about diversity is transforming the Supreme Court’s civil rights jurisprudence and forging the traditional model of equal protection away from traditional group-based identity politics.
I argue that this transformation is affecting equality arguments in other jurisdictions. Focusing mostly on recent LGBT cases, I identify a relationship between “pluralism-anxiety” and increasing reliance on new standards of adjudication. In particular, constitutional courts often dismissed traditional equality standard of review, focusing instead on equality-based and liberty-based dignity arguments. This development is also testified by the increasing success of dignity discourse. Dignity makes it possible for constitutional courts to accommodate different conceptions of human rights and new claims of equality without adopting rigid solutions such as those resulting from pure formal equality arguments.

Substantive Inequality and Discrimination as the Irrational Distribution of a Benefit: A Rehabilitation

This paper attempts to give new life to a conception of the rights to equality and non-discrimination —often misleadingly called ‘formal’ and currently less fashionable— built around irrationality in the distribution of a benefit. To be clear, this is both a conception of ‘substantive inequality’ and discrimination. First, the paper outlines the philosophical picture of practical reason which underpins the conception. It then moves to substance, in particular the central notion of equal moral status Then, relying on argumentation theory, it shows how the conception can be extracted from the language of equality and discrimination provisions. Finally, it argues that, compared with other conceptions of equality and discrimination, this one is particularly suited for judicial decision-making: it is (1) grounded in a standard account of action and responsibility (2) simple and down-to-earth and (3) institutionally legitimate. This explains its persisting presence in many jurisdictions.

Multiple Diversity Governance through Law and Politics

With the violent ethnic conflicts in the Balkans after the end of the Cold War, secessionist movements in Western Europe, and the refugee crisis in 2015, the integration of old and new minorities and stateless nations became a top priority for European contries. However, it is more and more evident that old legal and political concepts no longer adequately deal with these challenges. As long as 'others' are seen to 'be' the problem for national security, governabiltiy, or social cohesion through the lens of the monist-identitarian nation-state paradigm, nothing will change in the trias of identity-security-democracy for the theory and practice of conflict regulation through public law. This paper tries to deconstruct the natural and ideological fallacies of the nation-state paradigm and to demonstrate a theoretically and institutionally alternative pluralist model of multiple diversity governance of how to reconcile political unity with legal equality and cultural diversity.