"Group rights" and the problem of statistical discrimination

Abstract

The anti-subordination principle that Owen Fiss's celebrated article shields seems to have been decisively ejected by the courts in the last quarter hundred But that rejection was a mistake-the antisubordination principle is central to the Equal Protection Clause-and in the coming years the courts may again be forced to recognize its centrality. The reason is that the enigma of rational statistical discrimination looks to be emerging as a central issue. The publicly prevailing framework, organized around the so-called antidiscrimination principle, does not address that question at issue in a useful way; the antisubordination principle does. Rational statistical discrimination is discrimination based