ABSTRACT
Antidiscrimination law is in real trouble. People on the left attack it for being incapable of addressing structural inequalities in America. People on the right attack it for demonizing and reversely discriminating against dominant groups. This Article focuses on the Fair Housing Act (FHA) as a major antidiscrimination law and takes the first deep dive into nearly six decades of FHA jurisprudence and conducts the first doctrinal analysis of how antidiscrimination law itself has contributed to its plight of being under attack from both the left and the right. The Article is also among the first efforts to reimagine antidiscrimination law to forge unity in an increasingly divided society.
After the FHA’s passage, federal courts were willing to scrutinize defendants’ justifications and hold defendants liable for FHA violations. Starting in the mid-1970s, however, courts began to take a highly deferential stance toward defense and more readily hold defendants’ acts as lawful, an approach that effectively authorizes defendants to pursue their interests and cause discriminatory harm to protected groups and curtails the FHA’s ability to address structural housing inequalities. It associates FHA liability with immorality and renders FHA lawsuits morally divisive provoking anti-antidiscrimination sentiments and undermines the legitimacy of the FHA.
The Article proposes reconceptualizing discrimination through a nuisance framework by balancing conflicting interests and downplaying the defendant’s morality, a nuisance framework can better address structural inequality and avoid fanning anti-antidiscrimination sentiments in America.
Hu, Xiaoqian, The ‘Nuisance’ Of Discrimination (June 18, 2026), Arizona Legal Studies Discussion Paper 26-14; 16 UC Irvine Law Review (forthcoming 2026).
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