North Carolina Law Review

University of North Carolina School of Law

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Setting the Standard for Proximate Cause in the Wake of Bank of America Corp. v. City of Miami

March 25, 2019

97 N.C. L. Rev. 529 (2019)


The Supreme Court’s recent opinion in Bank of America Corp. v. City of Miami has created fresh uncertainty around the interpretation of the Fair Housing Act. The Supreme Court held for the first time that there is a proximate cause requirement under the Fair Housing Act but expressly declined to decide the standard for meeting that requirement. This Article responds to that open question. It contextualizes Bank of America within the Court’s growing body of statutory proximate cause doctrine and uses the case as a starting point for addressing the broader question of how to determine the meaning of proximate cause in all statutory claims.


The Article argues that the Supreme Court and lower courts must adopt a uniform analytical framework for determining proximate cause in statutory claims. The Article demonstrates that the Supreme Court’s failure to do so thus far has produced deep doctrinal incoherence, culminating in the Court’s inability to articulate a standard for proximate cause under the Fair Housing Act in Bank of America. The Article proposes that courts should uniformly apply the “scope of liability” framework as set forth in the recent Restatement (Third) of Torts. It contends that the scope of liability framework properly anchors proximate cause in the statutory scheme, ensures doctrinal determinacy, and prevents improper judicial legislation.


The Article then applies this framework to arrive at the proper standard for proximate cause under the Fair Housing Act. Through extensive legislative history analysis, the Article concludes that the standard for proximate cause under the Fair Housing Act is satisfied where the harm caused by unlawful discrimination results from direct effects on the housing market and falls within one of the three core areas of congressional concern underlying the Act’s enactment.



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