Wednesday, February 7, 2018
Professor Michael Morley of Barry University Dwayne O. Andreas School of Law recently posted an interesting essay on SSRN, entitled "The Disparate Impact Canon" (University of Pennsylvania Law Review Online, Forthcoming). Professor Morley builds on one of Justice Sonya Sotomayor's remarks during the recent oral arguments in Husted v. A. Philip Randolph Institute. He posits and evaluates a "disparate impact canon" of statutory interpretation: a principle "that would require courts to construe ambiguous federal statutes in a manner that avoids, combats, or prevents racially disparate impacts." Professor Morley also considers how such a disparate impact canon would fit into larger debates about the role of judges, with particular attention to Justice Sotomayor's jurisprudence.