Disparate Statistics

Statistical evidence is crucial throughout disparate impact’s three-stage analysis: during (1) the plaintiff’s prima facie demonstration of a policy’s disparate impact; (2) the defendant’s job-related business necessity defense of the discriminatory policy; and (3) the plaintiff’s demonstration of an alternative policy without the same discriminatory impact. The circuit courts are split on a vital question about the “practical significance” of statistics at Stage 1: Are “small” impacts legally insignificant? For example, is an employment policy that causes a one percent disparate impact an appropriate policy for redress through disparate impact litigation? This circuit split calls for a comprehensive analysis of practical significance testing across disparate impact’s stages. Importantly, courts and commentators use “practical significance” ambiguously between two aspects of practical significance: the magnitude of an effect and confidence in statistical evidence. For example, at Stage 1 courts might ask whether statistical evidence supports a disparate impact (a confidence inquiry) and whether such an impact is large enough to be legally relevant (a magnitude inquiry). Disparate impact’s texts, purposes, and controlling interpretations are consistent with confidence inquires at all three stages, but not magnitude inquiries. Specifically, magnitude inquiries are inappropriate at Stages 1 and 3—there is no discriminatory impact or reduction too small or subtle for the purposes of the disparate impact analysis. Magnitude inquiries are appropriate at Stage 2, when an employer defends a discriminatory policy on the basis of its job-related business necessity

How People Judge What Is Reasonable

A classic debate concerns whether reasonableness should be understood statistically (e.g., reasonableness is what is common) or prescriptively (e.g., reasonableness is what is good). This Article elaborates and defends a third possibility. Reasonableness is a partly statistical and partly prescriptive “hybrid,” reflecting both statistical and prescriptive considerations. Experiments reveal that people apply reasonableness as a hybrid concept, and the Article argues that a hybrid account offers the best general theory of reasonableness. First, the Article investigates how ordinary people judge what is reasonable. Reasonableness sits at the core of countless legal standards, yet little work has investigated how ordinary people (i.e., potential jurors) actually make reasonableness judgments. Experiments reveal that judgments of reasonableness are systematically intermediate between judgments of the relevant average and ideal across numerous legal domains. For example, participants’ mean judgment of the legally reasonable number of weeks’ delay before a criminal trial (ten weeks) falls between the judged average (seventeen weeks) and ideal (seven weeks). So too for the reasonable num- ber of days to accept a contract offer, the reasonable rate of attorneys’ fees, the reasonable loan interest rate, and the reasonable annual number of loud events on a football field in a residential neighborhood. Judgment of reasonableness is better predicted by both statistical and prescriptive factors than by either factor alone. This Article uses this experimental discovery to develop a normative view of reasonableness. It elaborates an account of reasonableness as a hybrid standard, arguing that this view offers the best general theory of reasonableness, one that applies correctly across multiple legal domains. Moreover, this hybrid feature is the historical essence of legal reasonableness: the original use of the “reasonable person” and the “man on the Clapham omnibus” aimed to reflect both statistical and prescriptive considerations. Empirically, reasonableness is a hybrid judgment. And normatively, reasonableness should be applied as a hybrid standard

Warriors of Dauphin County: The 127th Pennsylvania Volunteers

When Pennsylvania Governor Andrew Gregg Curtin charged the men of his state to enlist in July 1862, he was desperate for soldiers to fill the federal quota set for Pennsylvania. Heeding the call, William Jennings – citizen of Harrisburg and then the Adjutant of Camp Curtin – approached the governor to proffer his services to state and nation. Curtin acceded; if Jennings could form a regiment, the ambitious young officer would be granted its colonelcy. [excerpt

Searching for Stevens

You haven’t seen much from me yet this semester. For this I apologize. I have been knee-deep in preliminary research for a special project I’m working on for the blog – one that can’t be completed until the weather breaks. I originally meant to learn just enough about the topic of this project to share a brief overview with you all, but, as sometimes happens during the research process, I’ve become a little obsessed with the central figure of my research: one Congressman Thaddeus Stevens. [excerpt

Understanding the Civil War and Its Place in the American Mind

Perhaps it is because I have spent so much time with people for whom the Civil War is a life choice, but I confess, there are times when I wonder if we—myself included—sometimes get carried away by our fierce and noble passion for the past. The Civil War is, of course, incredibly important both in its own right and in the long context of American history. But I do wonder if an overly-zealous fascination with the Civil War, especially if it becomes too single-minded, can distract us from other important moments in history, as well as from other types of worthy understandings from other fields of study. [excerpt