Law Commons^™

The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane

William & Mary Bill of Rights Journal

In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of suspicionless …

Data-Driven Discrimination At Work, Pauline T. Kim

William & Mary Law Review

A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired, or promoted. Although data algorithms can help to avoid biased human decision-making, they also risk introducing new sources of bias. Algorithms built on inaccurate, biased, or unrepresentative data can produce outcomes biased along lines of race, sex, or other protected characteristics. Data mining techniques may cause employment decisions to be based on correlations rather than causal relationships; they may obscure the basis on which employment decisions are made; and they may further exacerbate inequality because error detection is limited and feedback …

The Trouble With Racial Quotas In Disparate Impact Remedial Orders, Wencong Fa

William & Mary Bill of Rights Journal

Justice Scalia’s concurring opinion in Ricci v. DeStefano highlighted severe conceptual tensions between the Equal Protection Clause of the Fourteenth Amendment, which protects individuals from racial discrimination, and disparate impact liability, which protects racial groups from adverse effects. Last year’s Supreme Court decision in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. suggested that disparate impact liability under the Fair Housing Act was constitutionally unproblematic because successful fair housing lawsuits over the past four decades have led to only race-neutral remedial orders enjoining the practice causing the disparate impact.

This Article analyzes the constitutionality of another …