Document Type
Article
Publication Date
3-2026
Abstract
In constitutional law, “discriminatory effect” often matters. So it’s surprising how often we don’t quite know what it means. That opacity is trans-substantive; it has been a recent pitfall in contexts as diverse as admissions-policy challenges under the Equal Protection Clause, personal-jurisdiction disputes under the “dormant” Commerce Clause, and, under the Free Exercise Clause, requests for exemptions from facially neutral laws.
This Article’s first corrective is a novel typology. Constitutional discriminatory effect is murky, in part, because it has many types; we perceive it in myriad ways across constitutional domains. Comprehending this complexity enhances our understanding of what discriminatory-effect rules mean and wards off simplistic views of the concept.
After thus taxonomizing discriminatory effect’s species, the Article explicates the genus. Drawing pragmatically on legal-causation principles, it argues that the discriminatory-effect idea ties constitutional responsibility to abnormality. A discriminatory effect’s distinctive trait is, in short, entwinement with what we take to be an “abnormal” causal relation. By attending to abnormality’s descriptive and prescriptive facets, this account further explains the types of discriminatory effect as constitutional-law phenomena and demystifies the questions they pose. Finally, after showing the paradigm’s doctrinal fit and analytical value in contemporary cases, the Article deploys it to sharpen doctrinal critique and illustrate how we might integrate nonjudicial views into the construction of constitutional meaning.
Disciplines
Constitutional Law | Jurisprudence | Law
Recommended Citation
W. Kerrel Murray,
Discriminatory Effect(s),
78
Fla. L. Rev.
793
(2026).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4885