Disparate Impact: Its Career and Critics
This seminar will explore the idea of liability for unintentional discrimination. Topics will include the nature of intentionality (and what is meant by calling some discrimination “unintentional”); justifications for the intent standard in discrimination law; disparate impact doctrine as a method for determining intent; the applicability of negligence and strict liability paradigms to discrimination claims; individual and group subordination models of discrimination; the values of meritocracy; and the fate of disparate impact law in the wake of recent Supreme Court decisions narrowing the scope of Congressional power to enforce the Fourteenth Amendment. Much of the focus will be on laws governing discrimination in employment, but we will also examine problems arising in voting law and a few other forms of governmental decisionmaking. Different students will be assigned to help lead the class discussion in different weeks, and each student will be required to write one 20-30 page paper. Paper topics will be chosen by the students and must be approved by the instructor.