It’s Time for the Executive Branch to Conduct a 'Disparate Impact Inventory': Remarks at the Federalist Society's Sixth Annual Executive Branch Review, April 17, 2018, Washington, D.C.

Abstract

In view of the controversy over the constitutionality of Griggs-style disparate impact liability raised by Justice Scalia in his Ricci v. DeStefano (2009) concurrence, Professor Heriot has suggested that the Administration conduct an inventory of all the statutes, regulations and policies are currently being interpreted to contain an element of disparate impact liability based on race, sex, color or national origin. For each, the legal argument for why it contains an element of disparate impact liability should be given and the best argument for why it should survive strict scrutiny (or intermediate scrutiny) should be given.

Endnotes have been added to these remarks.

Keywords: Disparate Impact, Griggs v. Duke Power, Ricci v. DeStefano

JEL Classification: A00, A10, K10