Disparate impact liability—or holding an actor liable for actions that have a disproportionate effect (disparate impact) on a particular race, sex, national origin, or religion—was invented by the Equal Employment Opportunity Commission during the Johnson administration as a strategy for stepping up the fight against employment discrimination. The Supreme Court eventually adopted this theory of liability in the employment context in the controversial case of Griggs v. Duke Power, 401 U.S. 424 (1971). Congress later incorporated it into the employment context in the Civil Rights Act of 1991. The Obama administration has eagerly embraced disparate impact liability: Administration officials have applied it to new areas, like housing, education and credit. Disturbingly to some, these officials have also arranged settlements in lawsuits headed to the Supreme Court that appeared likely to result in decisions limiting the doctrine’s reach. Because nearly every employment, education, housing, or lending policy has a disproportionate effect on some protected group, the recent growth of disparate impact means that virtually any such policy may be deemed illegal. Panelists will discuss whether and to what extent disparate impact’s metastasis thus threatens traditional principles of the rule of law and whether it is consistent with statutory law and the Constitution.
This panel on "Disparate Impact and the Rule of Law: Does Disparate Impact Liability Make Everything Illegal?" was part of a day-long conference on Civil Rights in the United States held on September 9, 2014, co-sponsored by the Federalist Society's Civil Rights Practice Group, the Cato Institute, and the Heritage Foundation.
Mr. Roger B. Clegg, President and General Counsel, Center for Equal Opportunity
Hon. Peter N. Kirsanow, Benesch, Friedlander, Coplan & Aronoff LLP and Commissioner, U.S. Commission on Civil Rights and former Member, National Labor Relations Board
Prof. Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law and the Director of the Center for Civil Rights, University of North Carolina Law School
Moderator: Mr. John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society
Administrative Law & Regulation Practice Group Podcast
John D. Graham, former Administrator of the Office of Information and Regulatory Affairs (OIRA), and Professor Todd J. Zywicki participated in a Teleforum conference call discussing the use of stealth regulatory tactics by federal agencies to circumvent OIRA review and rulemaking standards under the Administrative Procedures Act. Dr. Graham and Prof. Zywicki addressed the range of tactics used by agencies to bypass OIRA and APA regulatory standards, the implications of such tactics to the democratic accountability and technical competence of agencies, and options for pursuing reform. Both Speakers drew from a multi-author research collaboration organized by the Mercatus Center at George Mason University and edited by Dr. Graham that was published in Volume 37, Issue 2 and the Federalist Edition, Volume 1, Issue 1 of the Harvard Journal of Law and Public Policy.
Dr. John D. Graham, Dean, Indiana University School of Public and Environmental Affairs, and former Administrator, Office of Information and Regulatory Affairs (2001-2006)
Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law, and Senior Scholar, Mercatus Center at George Mason University
Administrative Law & Regulation Practice Group Podcast
Politicized spending by the Executive Branch is of increasing interest to social science scholars, transparency advocates, and lawyers. Beginning in 2010, in response to perceived abuses, Congress instituted an earmark moratorium; however, recent research details how political influence perseveres in the merit-based allocation of taxpayer funds. Unlike federal contracts, however, limited judicial remedies exist for challenging politicization in discretionary spending. A recent piece in the Federalist Society’s Engage details how courts will generally defer to agency determinations concerning spending, thus presenting difficulties for lawyers who seek to challenge political spending decisions in the Executive Branch. Our experts discussed the extent and effect of the political influence on spending and the importance of transparency.
Cause of Action, a government accountability group, also is launching a website detailing the phenomenon of Executive Branch earmarks and the transparency problems that persist. The website is available at www.ExecutiveBranchEarmarks.com/.
Daniel Z. Epstein, Executive Director, Cause of Action
Dr. John Hudak, Fellow, Governance Studies and Managing Editor, FixGov Blog, The Brookings Institution
Co-Sponsored by the Cato Institute and the Federalist Society
The use of consumer credit in America is ubiquitous. This is a phenomonon that has developed relatively recently in America. In Consumer Credit and the American Economy, authors explore why this is the case and what effect it has had upon America's economy. This book examines the economics, behavioral science, sociology, history, institutions, law, and regulation of consumer credit in the United States.
Join the Cato Institute and the Federalist Society as some of the foremost experts in consumer financial regulation discuss the history of consumer credit as well as what we can expect to see in years to come.
Prof. Todd Zywicki, George Mason University School of Law
Prof. Anthony Yezer, Department of Economics, George Washington University
Moderator: Mark Calabria, Director, Financial Regulation Studies, Cato Institute.
Financial Services & E-Commerce Practice Group Podcast
Professor Todd J. Zywicki joined a Teleforum conference call on his new book, Consumer Credit and the American Economy, co-authored with Thomas Durkin, Gregory Elliehausen, and Michael Staten. The book examines the economics, behavioral science, sociology, history, institutions, law, and regulation of consumer credit in the United States. Because of the importance of consumer credit in consumers' financial affairs, Professor Zywicki's intended audience includes anyone interested in these issues, not only specialists who spend much of their time focused on them. For this reason, the authors have carefully avoided academic jargon and the mathematics that is the modern language of economics. It also examines the psychological, sociological, historical, and especially legal traditions that go into fully understanding what has led to the demand for consumer credit and to what the markets and institutions that provide these products have become today. Bill Himpler, Executive Vice President at the American Financial Services Association, offered his comments and questions.