Law and the Zero-Sum Game of Discrimination: Commentary on Norton and Sommers (2011)

Norton and Sommers (2011, this issue) find that Whites see discrimination as a zero-sum game that they are now losing. This psychological finding has serious implications for antidiscrimination law. This commentary briefly traces the relevant, recent history of antidiscrimination law and explains the consequences of the zero-sum finding in three related areas: affirmative action, disparate treatment, and disparate impact. In all three areas, the zero-sum finding-and the presumption of intentional discrimination against Whites that it indicates-upsets the structure of antidiscrimination law traditionally designed to remedy discrimination against historically disadvantaged racial minorities. Moreover, the zero-sum finding suggests that recent ballot initiatives banning affirmative action and recent, pivotal Supreme Court opinions limiting antidiscrimination laws that were originally erected to prevent the exclusion of racial minorities are not just the product of voters in a handful of states, of a few disgruntled White employees or university applicants, or of a few justices, but rather are reflective of a more widespread societal sentiment.