Under the familiar rational basis test, a court must uphold a challenged statute if there is any conceivable basis to support it. Courts routinely accept speculative—even far-fetched—justifications that few would describe as “rational” in a colloquial sense. Modern rational basis review typically is justified as a necessary concession to the nature of the legislative process. The puzzle is why courts apply this same deferential standard when reviewing constitutional challenges to administrative agency actions. Neither courts nor scholars have explained why administrative agencies—which share few of the features of democratically accountable legislative bodies—should enjoy the same degree of judicial deference to their decisions. In many states and localities, this permissive rationality standard is all that constrains the decisions that agencies make. This Article argues that there is in fact no justification for the prevailing approach and that as a constitutional matter courts have an obligation to scrutinize agency regulations more closely than they do legislative enactments. Courts must ensure that agencies at all levels of government act on the basis of actual reasons, and there is at least a plausible connection between regulatory means and ends.
Volume 104
The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries
This Note challenges William Blackstone’s modern position as the “oracle of the law” in the eighteenth century. In a time when the status of legal doctrines at the Founding is of renewed significance in interpreting the Constitution, it is especially important to ensure that the sources of these doctrines comport with historical practices. This Note looks beyond the usual story of Blackstone’s influence, as told by the significant circulation of his work. It turns instead to the work’s practical significance for legal education in the decades preceding the Constitutional Convention. By using curricula and student notes—referred to as commonplace books—to discover what was actually considered influential in the legal profession of the period, a more comprehensive perspective of eighteenth-century legal thought is uncovered. While Blackstone was apparently known to these late colonists, his work was far from “the most widely read law book in eighteenth-century America.” Instead, more traditional treatises and English reporters dominated legal learning until at least 1787. It is these admittedly more impenetrable works which should inform our understanding of the common law as it existed at the Founding.
Socioeconomic Status Discrimination
This Article makes the case for protecting socioeconomic status (SES) under discrimination statutes that govern employment, housing, education, voting, public accommodations, and credit/lending. While others have argued that poverty should be a protected class under the Fourteenth Amendment, the courts have rejected this idea. The possibility of protecting SES under discrimination statutes has received little consideration. I argue that this idea deserves more serious attention. I advance four arguments in favor of adding SES to the list of protected traits. Two moral, one political, and one legal.
First and most straightforward, the values animating discrimination law apply to poverty: Existing discrimination laws protect traits that are subject to pervasive and illegitimate social bias. They cover both immutable and mutable traits. The logic animating these laws applies to poverty, regardless of whether a person was born poor or falls into poverty later in life.
Second, due to the association between race and poverty, SES-based discrimination reinforces and perpetuates racial inequality. A comprehensive strategy for addressing racial discrimination must also address SES-based discrimination.
The third argument is political: Many policies that have an adverse racial impact have an adverse impact on poor people of all races—e.g., voter ID laws or zoning laws restricting multi-unit housing. Framing disparate-impact claims in terms of SES would highlight the extent that lower-SES people of all races share common experiences of marginalization. This might be a step toward building a multiracial coalition focused on economic inequality—a longstanding goal of many progressives.
The fourth argument is legal: Some have argued that racial disparate-impact law should trigger scrutiny under the Fourteenth Amendment because it requires racially motivated decision making. Because poverty is not a suspect class under the Fourteenth Amendment, disparate-impact provisions targeting socioeconomic disparities would not raise the same constitutional concern.
I explain how protections against SES discrimination could be administered, as a practical matter. Prohibiting SES discrimination would not be as impractical as it might initially seem. Indeed, the practical questions associated with protecting SES are not really different from those associated with protecting race, disability, age, and other traits.
“Personal poverty may entail much the same social stigma as historically attached to certain racial or ethnic groups. But . . . personal wealth may not necessarily share the general irrelevance as a basis for legislative action that race or nationality is recognized to have.[1]
“[S]ociety’s unexamined embrace of class discrimination reflects the irony that class is both the preferred method for and the hidden obstacle to racial justice.”[2]