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This paper undertakes a comparative exploration of affirmative action discourse in German and American constitutional equality law. The first task for such a project is to acknowledge an important threshold dilemma. The difficulty in question derives not so much from dissimilarities between the technical legal structures of German and American affirmative action policy. The problem stems rather from the different social grounds and groupings on which those legal structures have been erected. Because German "positive action"' applies only to women, gender and its cultural meanings have constituted the paradigmatic subject of the policy. The legal discussion of positive action has always taken its point of reference from broader political debates about the position of women as a social group in contemporary German society. Indeed, in Germany, positive action discourse is a discourse about the status of and relations between men and women.


Comparative and Foreign Law | Constitutional Law | Law | Law and Gender