What a "disparate impact" Equal Protection Clause test could mean

[Frank Cross]

There's a middle ground between Profs Binion and Volokh.  I agree
with Prof Volokh that letting judges strike down statutes for
disparate impact is a recipe for letting judges effect whatever policy
preferences they choose.  I bet you could find virtually every program
produced such an impact, if only due to random statistical variation.
But this discussion arose in the context of Hopwood,
where judges essentially were precluding the legislature and other state
entities from recognizing a societally disparate impact and responding.
If her doctrine simply called for courts deferring to such legislative
findings, it would be opposite to Lochnerianism.


Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712