At 2:00 p.m. on July 24, 2017, with Roger Clegg moderating, I will be presenting a Federalist Society teleforum titled “Are Existing Civil Rights Policies Based on a Statistical Understanding That Is the Opposite of Reality?” The subject concerns the fact that federal civil rights enforcement policies regarding lending, school discipline, criminal justice, voter qualifications, and employment have long been based on the belief that relaxing standards or otherwise reducing the frequency of some adverse outcome will tend to reduce (a) relative (percentage) racial and other demographic differences in rates of experiencing the outcome and (b) the proportions racial minorities and other groups more susceptible to the outcome make up of persons experiencing the outcome. In fact, reducing the frequency of an adverse outcome tends to increase, not reduce, both (a) and (b) as to the outcome.
In consequence of the government’s failure to understand this matter, entities covered by civil rights law that have acceded to government encouragements to relax standards have increased the chances that the government (or others) will sue them for discrimination. In the context of consent decrees and other agreements calling for reducing adverse outcomes in order to reduce (a) and (b), the more entities and individuals attempt to comply with their obligations to reduce the outcomes, the more likely they are to be faulted for failing to reduce (or for increasing) (a) and (b). [Read More]
On November 28, 2016, the Department of Justice (DOJ) filed an amicus curiae brief urging the Supreme Court not to grant a writ of certiorari for review of the Fifth Circuit decision in Veasey v. Abbottstriking down a Texas voter ID law. Given the likely views of the Trump administration on voter ID laws, if the Court grants review, DOJ may well file a brief in support of the petitioner. Such brief would present the matter rather differently from the agency’s recent filing. [Read More]
George Will quotes Federalist Society directors Nicholas Quinn Rosenkranz and Boyden Gray in his Washington Post op-ed on the Justice Department's recent settlements against Bank of America and how the payment is being handled:
The Justice Department has negotiated “bank settlement agreements” whereby banks make restitution to the government for the damage they allegedly did in connection with the creation and sale of residential mortgage-backed securities in the subprime mortgage crisis. Our subject here is not, however, whether the sums extracted from the banks (e.g.,Citigroup $7 billion, Bank of America $16.65 billion, JPMorgan $13 billion) are proportionate to their alleged culpabilities. Rather, our subject is what Justice does with millions of these dollars.
The Justice Department has celebrated its settlements with major banks for their conduct leading up to the subprime mortgage crisis, and the headlines have trumpeted the staggering total sums: Bank of America $16.65 billion, Citigroup $7 billion, JPMorgan $13 billion. What is less well known is that some of this money — amounting to hundreds of millions of dollars — is designated for “donation” to various “community development” organizations that were neither parties to the case nor victims of the alleged wrongdoing. Investor’s Business Daily hascharacterized these payments as “political payoffs to Obama constituency groups,” and Congress is now considering banning this practice with theStop Settlement Slush Funds Act of 2016.
Additionally, Rosenkranz and Gray both testified before the The U.S. House of Representatives Committee On Financial Services, Subcommittee On Oversight and Investigation in May.
As one condition of the settlement stemming from their role in the subprime mortgage crisis, Bank of America was permitted to deflect payments that would otherwise go to the Treasury to a list of non-governmental organizations approved by the government.
The United States is famously a nation of laws and not of men—or must we now say “persons”?—but what, exactly, does that mean? And, more important, is that still even true? In many ways it isn't. And the further from the rule of law we stray, the less of a Republic we become. [Read More]