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33 Wayne L. Rev. 97 (1986-1987)
Reformulating the Motive/Effects Debate in Constitutional Adjudication

handle is hein.journals/waynlr33 and id is 111 raw text is: COMMENTARY
Stephen E. Gottliebt
Commentators have written extensively in an effort to differen-
tiate and compare motive and effects tests in constitutional adjudica-
tion. At issue is whether the constitutionality of official action
t Professor, Albany Law School of Union University. B.A. 1962, Princeton
University; LL.B. 1965, Yale Law School.
The author would like to thank Robert Sedler and colleagues, Katheryn D.
Katz and Alex Y. Seita, for helpful suggestions and criticism.
I.  Recent commentary includes Baker, Outcome Equality or Equality of
Respect: The Substantive Content of Equal Protection, 131 U. PA. L. REv. 933,
974, 979 (1983) (although cost/benefit analysis characteristic of effects but not of
motive, Court's motive test has objective elements usually associated with an impact
test because Court concerned with social meaning rather than subjective issue);
Blasi, The Pathological Perspective and the First Amendment, 85 COLUM. L. REV.
449, 504-05 (1985) (favors inquiry into motive, despite proof problems, because al-
lows review of rhetoric); Brodin, The Role of Fault and Motive in Defining Dis-
crimination: The Seniority Question Under Title VII, 62 N.C.L. REV. 943, 981
(1984) (motive more restrictive than effects and is likely to be weighed in the
liability determination [in tort litigation] only when the courts are wary of a partic-
ular type of claim); Eisenberg, Disproportionate Impact and Illicit Motive: Theo-
ries of Constitutional Adjudication, 52 N.Y.U. L. REV. 36, 98-105, 155-56 (1977)
(rights cannot be guaranteed without inquiry into motive since motive may be nec-
essary to establish causation when impact is unclear); Harper & Lupu, Fair Repre-
sentation Equal Protection, 98 HARV. L. REV. 1212, 1243 (1985) (motive allows
inquiry into expressed attitudes, prior treatment, and justification); Kreimer, Allo-
cational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA.
L. REV. 1293, 1333-47 (1984) (motive presents problems of proving who meant
what; effects presents problems of limitation or balancing); Perry, The Dispropor-
tionate Impact Theory of Racial Discrimination, 125 U. PA. L. REV. 540, 586
(1977) (noting Court rejection of disproportionate impact theory in Washington v.
Davis, 426 U.S. 229 (1976)); Raveson, Unmasking the Motives of Government
Decisionmakers: A Subpoena For Your Thoughts? 63 N.C.L. REV. 879, 965-67,
991 (1985) (motive analysis makes testimony about purposes of decisionmaking
body relevant and important, but privilege may bar inquiry); Note, Liberal Theory
as Constitutional Doctrine: The Critical Approach to Equal Protection, 73 GEO.
L.J. 153, 154, 185 (1984) [hereinafter cited as Critical Approach to Equal Protec-
tion] (effects theory would produce more complete equality than motive and would

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