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- Title
The Evolving Strong-Basis-In- Evidence Standard.
- Authors
Johnson, Jr., Herman N.
- Abstract
One of the many questions arising from the Supreme Court's decision in Ricci v. DeStefano is the nature of the strong-basis-in-evidence standard used by the Court to rectify the perceived tension between Title VII's disparate treatment and disparate impact provisions. In this article, I demonstrate that the strong-basis-in-evidence standard comprises two related, but separate, legal paradigms. First, since its inception in the Equal Protection, affirmative action context, courts have treated the strong-basis-in-evidence standard as a burden of proof. However, the Supreme Court and the circuit courts have differed as to whether this burden of proof is a burden of production or a burden of persuasion. Based upon my legal analysis and economic models, I submit that the strong-basis-in-evidence standard lodges a burden of persuasion upon defendants. Second, I demonstrate that the Court's transfer of the strong-basis-in-evidence standard to the Title VII context in Ricci spurred the evolution of the standard from a burden of persuasion to a standard of proof. Principally, the transfer imported the strong-basis-in-evidence standard from the realm of legislative facts in the Fourteenth Amendment, Equal Protection context to the realm of adjudicative facts in the Title VII context. Relying upon the application of probability analysis to adjudicative facts, I show that in the Title VII context the strong-basis-in-evidence standard is a standard of proof falling below the preponderance-of-the-evidence standard. I then demonstrate how this understanding of the strong-basis-in-evidence standard would apply to the propriety of discarding the results of a test showing a disparate impact.
- Subjects
UNITED States; ACTIONS &; defenses (Law); UNITED States. Supreme Court; RICCI v. DeStefano; LEGAL evidence; EQUAL rights; DUE process of law
- Publication
Berkeley Journal of Employment & Labor Law, 2011, Vol 32, Issue 2, p347
- ISSN
1067-7666
- Publication type
Article