The Disparate Impact Canon

15 Pages Posted: 5 Feb 2018 Last revised: 23 Apr 2018

Michael Morley

Florida State University - College of Law

Date Written: January 26, 2018

Abstract

During a recent oral argument, Justice Sonia Sotomayor raised the possibility of rejecting a proposed interpretation of a federal statute, the National Voting Rights Act, on the grounds it would have a disproportionate adverse impact on racial minorities. This Essay expands upon Justice Sotomayor's comment, considering the possibility of recognizing a new substantive canon of statutory construction: a "disparate impact canon" that would require courts to construe ambiguous federal statutes in a manner that avoids, combats, or prevents racially disparate impacts. The Essay considers how well a disparate impact canon fits with the standard justifications for substantive canons, as well as its constitutional implications. It concludes by pointing out that debate over a disparate impact canon is a proxy for larger disputes over the proper role of judges and empathy in the adjudicative process -- issues that arose during Justice Sotomayor's confirmation hearings. Recognizing a disparate impact canon would be a natural, albeit substantial, extension of her jurisprudence.

Keywords: disparate impact, racial equality, equal protection, statutory interpretation, canons of construction, substantive canons, constitution, constitutional avoidance, judicial process, judging, empathy

Suggested Citation

Morley, Michael, The Disparate Impact Canon (January 26, 2018). 166 U. Pa. L. Rev. Online 249 (2018).. Available at SSRN: https://ssrn.com/abstract=3110990

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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