Much of the backlog of cases in our over-burdened courts has been created by the courts themselves, with adventurous judicial "interpretations" of laws that leave a large gray area of uncertainty around even the most plainly written legislation. Lawyers of course fish in these troubled waters, creating much needless litigation, but it is judges who have troubled the waters in the first place.

Nowhere is this more true than in civil rights cases. Since the Constitution of the United States and the Civil Rights Act of 1964 both decree equal treatment for all, there should not be nearly as much basis for litigation in civil rights cases as there is-- at least not in cases where the facts are well known and undisputed, as in the recent New Haven firefighters' case that made it all the way up to the Supreme Court.

What was it that required three different levels of federal courts to try to figure out whether what actually happened was or was not racial discrimination-- with a decision finally being reached by the narrowest possible margin of 5 to 4 in the Supreme Court?

At the heart of much of this legal complexity and moral angst is a judge-made theory that a "disparate impact" of any job requirement on different groups is evidence of discrimination.

With two very different theories of what constitutes job discrimination-- either different treatment or different outcomes-- it is no wonder that courts have tied themselves into knots trying to figure out whether a particular case shows racial discrimination, even when the facts are known and plain.

The same notion-- and the same confusion-- applies in many other situations. If a higher proportion of blacks than whites get turned down for mortgage loans, then that too has been taken as evidence of racial discrimination.

It doesn't matter if blacks and whites are different on innumerable factors that go into mortgage loan decisions, as are Hispanics or Asian Americans as well.

All these groups have different credit scores, different incomes and many other differences. Why is it surprising that they have different loan approval rates? While the issue is often posed in terms of whites versus non-whites, whites also get turned down for mortgage loans more often than Asian Americans, who usually have higher credit scores than whites.

Only the underlying dogma that different outcomes for different groups are evidence of discrimination makes this an issue-- and a source of unending controversy and polarization. Continued...