Irrational Inequality: The Role of Fact-Based Review in Equality Change

73 Vanderbilt L. Rev. En Banc 177, 2020

Rutgers Law School Research Paper

17 Pages Posted: 23 Jun 2020

See all articles by Katie R. Eyer

Katie R. Eyer

Rutgers, The State University of New Jersey - Rutgers Law School

Date Written: May 28, 2020

Abstract

Fact-based strategies – aimed at undermining the reasons why discrimination against a subordinated group is perceived as justified – play a key role in effectuating equality change, both before and after formal equality. Such fact-based strategies are a necessary precursor to formal equality (both statutory and constitutional), since groups are unlikely to be afforded equality rights if discrimination against them is viewed as justified. They are also an important component of post-formal equality efforts, since adjudicators – and the public – are unlikely to view actions disadvantaging even protected groups as discriminatory when they perceive governmental or societal actions as justified on other grounds.

This Essay, a response to Joseph Landau's "Broken Records," argues that today, most fact-based work of this kind takes place through the application by the courts of meaningful fact-based rational basis review – even though canonical accounts of rational basis review deny this reality. It suggests moreover that although such meaningful rational basis review is not consistently afforded by the courts, where it is, it has often been a critical site of equality change. The Essay concludes by arguing that trying to institute a systematically available form of fact-based review under the Equal Protection clause is likely to confront opposition from both the left and the right – and thus is likely to entail tradeoffs – that could significantly undermine the efficacy of currently available fact-based constitutional strategies.

Suggested Citation

Eyer, Katie R., Irrational Inequality: The Role of Fact-Based Review in Equality Change (May 28, 2020). 73 Vanderbilt L. Rev. En Banc 177, 2020, Rutgers Law School Research Paper, Available at SSRN: https://ssrn.com/abstract=3613174

Katie R. Eyer (Contact Author)

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

217 N. 5th Street
Camden, NJ 08102-1203
United States
856-225-6960 (Phone)

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