Ellen Katz has posted this draft on SSRN (forthcoming, A Nation of Widening Opportunities? The Civil Rights Act at Fifty, Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press, 2014). Here is the abstract:
This Essay relies on an analogy pressed in the dissenting opinion in Shelby County v. Holder to describe an increasingly prominent conception of federal anti-discrimination law. It is a conception that sees the existing regime to be a source of unjust enrichment to its beneficiaries, one that does not simply make victims of undeniable discrimination whole, but instead places a host of interested parties, victims included, in a decidedly better position than they would have been had the discrimination never occurred. Notably, this conception of federal anti-discrimination law does not deny the persistence of discrimination, including discrimination that is unconstitutional or otherwise invidious. The more pressing worry, however, is that the regime today does more harm than the discrimination it presently addresses.