Balancing Versus Structured Decision Procedures: Antitrust, Title VII Disparate Impact, and Constitutional Law Strict Scrutiny

Posted by Social Science Research Network

Balancing Versus Structured Decision Procedures: Antitrust, Title VII Disparate Impact, and Constitutional Law Strict Scrutiny

By Louis Kaplow (Harvard)

Important doctrines in diverse areas of law employ structured decision procedures requiring, in rough terms, that the plaintiff first make some demonstration of harm; if but only if that is done, the defendant must make some showing of benefit; and if but only if that occurs, balancing is performed. In-depth analysis of such protocols reveals them to be inferior to unconstrained balancing with respect to the quality of final decisions and the guidance they provide for the collection of information and, accordingly, the conduct of adjudication. This article applies this analysis to the rule of reason and merger regulation under antitrust law, Title VII disparate impact law, and the practices of strict scrutiny and proportionality analysis in constitutional law. Longstanding controversies are addressed and unappreciated deficiencies are discovered. In all three domains, existing law is cast in a substantially different light, both descriptively and normatively.