American Equal Protection and Global Convergence
By Holning Lau & Hillary Li
Commentators have noted that equal protection doctrine is in a state of transformation. The nature of that transformation, however, is poorly understood. This Article offers a clearer view of the change underway. This Article is the first to reveal and synthesize three major trajectories along which the U.S. Supreme Court has begun to move. First, the Court has begun to blur the line that it previously drew between facial discrimination and disparate impact. Second, the Court has begun to collapse its previously established tiered standards for reviewing discrimination. These two trajectories combine to produce a third trajectory of change: by blurring the distinction between facial discrimination and disparate impact, and by collapsing tiered review, the United States’ equal protection doctrine is converging with equality jurisprudence from peer jurisdictions abroad.
After describing these changes, we argue that the collective wisdom of foreign jurisdictions should serve as persuasive authority encouraging the United States to continue along its current trajectories of doctrinal reform. We contend that foreign jurisdictions have served as laboratories of doctrinal innovation from which the United States could learn.